Best of… Drafting a social networking policy

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Best of… Avoiding employment lawsuits

6 tips to avoid an employment lawsuit.

Best of… Pregnancy discrimination and lactation

Ohio Supreme Court avoids the issue of whether sex discrimination includes lactation.

WIRTW #97

Thanks to the magical ability to schedule posts in advance, I am with my family in Disney World while you’re reading today’s WIRTW. Next week, I will be running a series of what I think are some of my best posts from earlier this year. Today, take a look at what I think are some of the best posts from my fellow employment law and HR bloggers from earlier this week.

The Word on Employment Law with John Phillips thinks a 38-year employee deserve more than a 10-minute termination discussion.

Mark Toth’s Manpower Employment Blawg reports on possible changes to federal labor laws under Obama’s NLRB.

Mindy Chapman’s Case in Point draws a lesson on the ADA from a case involving talk show host Montel Williams.

Molly DiBianca at the Delaware Employment Law Blog has yet another story of someone who got herself in trouble for something posted on a social networking site.

Nick Fishman at the employeescreenIQ Blog discusses Equifax’s decision to stop selling credit reports for employment purposes.

Paul Secunda at the Workplace Prof Blog thinks employers that test employees for legally prescribed drugs are “clueless.”

Carl Boland’s FMLA Blog, on whether telling the office staff about a co-worker’s miscarriage violates the FMLA.

Michael Maslanka’s Work Matters, on the art of the apology.

Patrick Smith’s Iowa Employment Law Blog discusses how to avoid discrimination liability.

Workplace Investigations asks, “What is religion?”

I’ll be back with fresh content on October 5. In the meantime, enjoy next week’s replay.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Discrimination in the air

Consider the following comments relating to the promotion of female officers within a police department:

• The chief will never have a female on the command staff.
• None of you females will ever go anywhere, and other negative statements about women in the department.
• Women do not belong in the police force.
• Accusing a female employee of “bitching” when lodging complaints.

On first blush, these comments would appear to support a claim of sex discrimination. But, consider that these comments were all made by non-decision makers, and that the Chief, who was not alleged to have taken part in any of these comments, had the sole discretion to hire, fire, and promote. If only the Chief could make personnel decisions, then only his comments should be relevant to a discrimination claim. In Risch v. Royal Oak Police Dep’t (6th Cir. 9/23/09) [PDF], the 6th Circuit disagrees with me in sending the case back to the district court for a trial on the employee’s sex discrimination claim.

In finding that there was a triable jury issue, the majority relied on the “discriminatory atmosphere” in the department:

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. Two of the comments were made by sergeants who were members of the sixteen-person command staff, which serves as the managerial arm of the Department. Discriminatory statements made by individuals occupying managerial positions can be particularly probative of a discriminatory workplace culture….

For my money, the dissent has the better side of the argument as to whether an “atmosphere” can support a discrimination claim:

To be sure, sexist comments by other officers may have greater relevance if Risch were alleging sexual harassment, but she is not; rather, she alleges an unlawful discrete act – denial of a promotion based upon sex. To impute allegedly discriminatory comments and conduct by non-decision making employees within the Department to Chief Quisenberry and conclude that discriminatory animus may have infected his denial of Risch’s request for a promotion requires an inference upon inference – untethered to any proper evidentiary foundation.

Do comments such as those made in the Risch case belong in the workplace? Clearly, the answer is no. However, discrimination cannot exist in the air. It has to have a connection to the actual challenged decision. Without this nexus, we are opening our courts to a broad range of cases that will be decided on emotion and prejudice, not on facts bearing on the employment decision itself.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is the sky falling? The reality of wage and hour lawsuits

There is no doubt that wage and hour litigation is “the” hot topic in employment law. Dan Schwartz at the Connecticut Employment Law Blog has taken an empirical look at the number of wage and hour lawsuits filed and thinks that all of the hoopla might be a tad overblown. The numbers, however, only tell part of the story.

Federal courts classify their civil filings by type of case. Wage and hour lawsuits fall under the umbrella of “Labor” filings. The following breaks down “Labor” filings for the past five years, both in all federal courts and in Ohio’s two federal districts (courtesy of the Federal Court Management Statistics):

All Federal Districts

	Labor Cases	Total Filings	%
2008	16,788	349,969	4.80%
2007	18,674	335,655	5.56%
2006	16,659	335,868	4.96%
2005	18,322	330,721	5.54%
2004	18,330	358,983	5.11%

Ohio’s Federal Courts

	Labor Cases	Total Filings	%
2008	566	8,225	6.88%
2007	583	8,910	6.54%
2006	614	8,285	7.41%
2005	946	12,077	7.83%
2004	765	13,908	5.50%

As you can see, the total number of cases and percentage of overall cases was was down nationwide in 2008, but steady in Ohio. Moreover, Ohio’s federal courts have a higher percentage of wage and hour cases than the national average.

The danger posed by wage and hour lawsuits, however, isn’t in the number of cases filed. The danger is that most wage and hour cases are filed as class or collective actions, which prove to be very costly and carry with them enormous exposure for employers. You are naive if you don’t think that every plaintiffs attorney asks about wage and hour practices as part of their client intake. Additionally, the Department of Labor just announced the hiring of 250 new wage and hour investigators. Every employer is a target because no employer does wage and hour perfectly. And, even the tiniest slip can lead to a multi-million dollar claim. Do you need a better reason to get a handle on your wage and hour practices sooner rather than later?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Update on ADA Amendments Act: EEOC Proposed Regulations are Now Available

Earlier today I wrote on the EEOC’s proposed regulation implementing the ADA Amendments Act. This evening, those proposed regulations finally became available. You can download them from HRhero.com. Thanks to Dan Schwartz for pointing this out.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What is a “disability” under the recent ADA Amendments Act

The ADA Amendments Act, which became effective January 1, 2009, is intended “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Recently, the EEOC published its proposed regulation interpreting these amended provisions. The regulations will be published this week, and the EEOC has already published a helpful Q&A discussing the proposed ADAAA regulations.

The core three-part definition of “disability” largely remains unaltered. An ADA-protected disability is still defined as:

1. a physical or mental impairment that substantially limits a major life activity; or
2. a record of a physical or mental impairment that substantially limited a major life activity; or
3. when an employer takes an action prohibited by the ADA based on an actual or perceived impairment.

What has changed under the ADAAA is how these definitions are interpreted and applied. Indeed, according to the EEOC, “As a result of the ADAAA, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability….’”

Major Life Activities

“Major life activities” fall under one of two categories. An employee only needs one major life activity from either of the following:

• Category One includes examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working at a type of work.
• Category Two covers the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, cardiovascular and reproductive functions.

Substantially Limiting

To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity with that of most people in the general population.

Mitigating Measures

The positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, an employer must ignore the fact that a mitigating measure removes or reduces an impairment in determining whether an employee is disabled. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. Ordinary eyeglasses or contact lenses do not count as mitigating measures.

Exemplar Impairments

• The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

• The following are examples of impairments that may be substantially limiting for some individuals but not for others: asthma, back and leg impairments, and learning disabilities.

• An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. Examples of such impairments include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.

• The following are examples of impairments that usually are not considered “disabilities”: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis and seasonal allergies.

“Regarded as” Disabled

Under the ADAAA, an employer “regards” an individual as having a disability if it takes a prohibited action based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. No longer does one have to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity. Employers have no obligation to provide reasonable accommodation to an individual who only meets the “regarded as” definition of disability.

The regulations are not final, and are subject to change after the public has had a 60-day opportunity to comment and make suggestions. I will report further on these regulations after they become final.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Religious accommodation versus public image

According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy

According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #96

Yesterday, I wrote about Ohio’s proposed law that would ban discrimination based on gender identity. Earlier this week, Dan Schwartz at the Connecticut Employment Law Blog weighed in on this issue in light of South African runner Caster Semenya, who competes as a woman but might genetically be a man.

In other pop culture news, Molly DiBianca at the Delaware Employment Law Blog gives her thoughts on workplace civility in light of recent outbursts by South Carolina GOP Rep. Joe Wilsonest, Serena Williams, and Kanye West.

Debra Reilly’s Workplace Investigations discusses employers’ bans on hiring employees with criminal histories. I’ve also touched on this topic before.

In other news about hiring decisions, Sindy Warren at the Warren & Hays Blog suggests that employers sparingly make word-of-mouth hiring decisions.

Both Philip Miles’s Lawffice Space and Walter Olson’s Overlawyered report on an Indiana court that has ruled that a pizza shop must pay for a 340-pound employee’s weight-loss surgery as a precursor to another operation for a workplace back injury.

LaborPains.org thinks unions efforts at a renaissance are futile. Meanwhile, the EFCA Report thinks that Senate Democrats are fractured on whether the controversial bill will pass this year.

Ann Bares at Compensation Cafe thinks that job titles can have some value to employees.

Ride the Lightning, courtesy of Eric Welter’s Laconic Law Blog, on whether employees have a right to privacy in personal emails sent via web-based email over an employer’s computer system.

Michael Maslanka’s Work Matters reminds us that often we need to start with the basics.

Melanie McClure at Arkansas Employment Law, on policies and exceptions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate

In yesterday's Columbus Dispatch, Jim Siegel reports that the Ohio House passed a bill that would prohibit employment discrimination based on sexual orientation by a vote of 53-39. If enacted, Ohio would join 20 other states with similar prohibitions. 17 Ohio cities, including Cleveland, already have similar laws.

The legislation would add sexual orientation and gender identity to the list of protected classes against whom employers cannot discriminate. The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.” It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Other key provisions include:

• A limitation to employers with 15 or more employees. All other forms of discrimination apply to employers with 4 or more employees.
• A carve out for religious groups.
• Permission for employers to deny access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with an employee’s gender identity.
• No requirement that employers construct new or additional facilities to accommodate employees’ sexual orientation or gender identity.
• No affirmative action requirements.
• Employers can enforce otherwise legal dress codes and grooming standards, provided that the employer permits employees who have undergone or are undergoing gender transition to adhere to the same dress code or grooming standards as their new gender.

The bill now moves on to the Ohio Senate, where its Republican majority promises a fight. According to Senate President Bill Harris, “I talk to business people all the time, and they’re saying it’s not an issue.” So let me get this straight. It’s acceptable to oppose this bill because businesses are self-reporting that they are not discriminating. Isn’t that akin to asking a plantation owner in 1863 if he wants to abolish slavery?

If we want to be a state that is attractive to progressive businesses, we need to pass progressive legislation. Let’s hope the Senate gets its act together and sends this bill to Governor Strickland for his signature.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is “fat” the new protected class?

This week, Michael Haberman, at HR Observations, continues his series on “isms” with a post on what he calls “fatism” (or discrimination against the overweight). I found this post to be timely in light of recent headlines made by the Cleveland Clinic’s CEO that he would not hire obese people if the law allowed him to do so (he has since retracted those criticized comments).

Conventional wisdom says that with the exception of the morbidly obese, obesity is not a characteristic protected by the anti-discrimination laws. Indeed, in 2006, the 6th Circuit said as much in EEOC v. Watkins Motor Lines [PDF], holding that “to constitute an ADA impairment, a person’s obesity, even morbid obesity,
must be the result of a physiological condition.” However, on Jan. 1, 2009, the ADA Amendments Act took effect. The ADAAA broadens what qualifies as a “disability” under the ADA.

It remains up in the air exactly how broadly this definition has been expanded. I do not believe it has been expanded so far as to encompass things such non-physiological obesity. We will have to wait and see, however, on the breadth of the ADAAA until courts and the EEOC start weighing in on exactly how broad the definition of “disability” has become.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Affirmative action and reverse discrimination

Many employers have affirmative action plans. However, just because you have a plan does not mean that the plan should be the only decision-making factor in hiring employees. In fact, sole reliance on an affirmative action plan in hiring could lead to a claim of reverse discrimination. In Humphries v. Pulaski County (8th Cir. 9/3/09) [PDF] examined the case of a white employee turned down for every promotion for which she applied in favor of African Americans. The court held:

[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII….

To be valid, an affirmative action policy must be narrowly tailored to meet the goal of remedying past discrimination. It cannot, however, be used to maintain racial quotas. In the court’s words, it cannot be used to “unnecessarily trammel the rights of non-minorities.”

If your business has an affirmative action plan, use it as a factor in hiring decisions, but not the only factor.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Muslims perceived as suffering the worst discrimination

We are a few days past the 8th anniversary of what many consider to be the worst day in the history of our country. According to a recent survey conducted by The Pew Research Center, there is still a perception that Muslims are discriminated against more than any other religious or other group.

2,010 adults were asked the following question: “Just your impression, in the United States today, is there a lot of discrimination against ____ or not?” Here are the results:

	Yes	No
	%	%
Muslims	58	29
Jews	35	54
Evang. Christians	27	56
Athiests	26	59
Mormons	24	56
Gays & Lesbians	64	30
Hispanics	52	41
Blacks	49	46
Women	37	59

This study does not reveal actual incidents of discrimination, but people’s perception of others’ discrimination. Interestingly, the only group that fairs worse than Muslims is gays and lesbians.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #95

Molly DiBianca at the Delaware Employment Law Blog reports on a CareerBuilder.com survey that 56% of employers either use or intend to use social media to background check applicants. Do you want to learn all about the role of social networking in your workplace? Then come to KJK’s next Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues.

What About Clients? suggests that lawyers not only use litigation to cure a past problem, but also as a preventative measure to prevent future problems.

One problem that needs to be cured – wage and hour violations, at least according to Tresa Baldas at the National Law Journal. As I noted last week, I couldn’t agree more.

John Gilleland, Ph.D., guest posting at Quirky Questions, shares his poignant thoughts on the impact the recession is having on jury deliberations in employment cases.

Sindy Warren at the Warren & Hays Blog teaches employers what to do when an employee cries '”Harassment.”

Michael Haberman’s HR Observations, on age discrimination. Mike’s thoughts are a nice complement to mine from earlier this week on forced retirement.

Do you want to know what non-compete agreements have in common with Sexual Chocolate? Then check out Kris Dunn, The HR Capitalist.

Darcy Dees at Compensation Cafe, on the importance of regular performance reviews.

Michael Maslanka’s Work Matters discusses how not to handle an employee’s days off to adopt a baby.

Eric Welter’s Laconic Law Blog discusses the IRS’s decision-making process for employees versus independent contractors.

This week’s review ends with what might be the worst employee training idea ever. According to Above the Law, an employee has sued a New Jersey health center after it faked a break-in and hostage situation to teach employees how to handle a crisis.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Contradictory explanations buys an employer a jury trial on sex discrimination claim

There is nothing inherently wrong with an employer having more than one reason for making an employment decision. For example, you could fire an employee because she is insubordinate and because she has poor attendance. Or, you can not hire someone because she is unqualified and she dressed sloppily at the interview. However, when reasons cannot logically co-exist, you might get yourself in trouble. Peck v. Elyria Foundry Co. (6th Cir. 9/9/09) [PDF] provides a good example.

Elyria Foundry refused to hire Carolyn Peck for any of the positions for which she applied. In support of its decision, the Foundry offered five different reasons:

• Based upon a supervisor’s account of Peck’s prior work performance at another foundry, she had the beginnings of carpal tunnel syndrome.
• Peck had attendance issues at a prior job because of her children and car trouble.
• One of the positions Peck applied for had already been filled.
• The Foundry kept Peck’s application open but did not consider her for other positions because there were no available women’s facilities.
• Once the Foundry received a threatening letter from Peck’s attorney, it took no further action on her application.

The court took issue with these various explanations, but focused its attention on the timing. If Peck’s carpel tunnel and prior attendance issues barred her from employment, why did the Foundry keep her application open for other positions that were ultimately filled by men?

The next time you give more than one reason for an employment decision, run them through the common sense test to make sure that they cannot be folded back on themselves and create pretext where it might not otherwise exist.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pretext as a four letter word

Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not? This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if so, how strong it is. One can distill the inquiry into a number of component parts, and it can be useful to do so. But that should not cause one to lose sight of the fact that at bottom the question is always whether the employer made up its stated reason to conceal intentional discrimination.

These are the words of the 6th Circuit from earlier this week in Chen v. Dow Chemical [PDF], a race discrimination and retaliation case. In 1964, U.S. Supreme Court Justice Potter Stewart famously non-defined obscenity as, “I know it when I see it.” In employment litigation we often get caught up in formal burdens of proof, legitimate non-discriminatory reasons, pretext, and direct evidence. Yet, discrimination cases are usually decided with the same informality laid out by Justice Stewart. If an employment decision looks discriminatory, then it probably is. The challenge for employers is to avoid the appearance of a made-up reason.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Forced retirement is a no-no

It’s still a fairly popular misnomer that businesses can force employees to retire at a certain age. For example, last week Law.com reported on a verdict against a Connecticut pharmaceutical company that forced its Chief Patent Counsel to retire at age 65.

With the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit – but do not require – mandatory retirement:

• at age 65 of executives or other employees in high, policy-making positions.
• at age 55 for publicly employed firefighters and law enforcement officers.

Forcing an employee out is the same as requiring an employee to require. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other employee.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #94

Time constraints lead to a shorter than usual review this week. But, I am here for my readers with what I think are the top 5 posts from the employment law blogosphere for this week (in no particular order):

• The New York Labor & Employment Law Report, with some suggestions on how to deal with employees’ social networking.

• Michael Fox’s Jottings by an Employer’s Lawyer, discussing the EEOC’s recent class action filing against UPS, and the difficult position employers are in when dealing with an injured or ill employee who needs more than 12 weeks of medical leave.

• Maryland Employment Law Developments, which attempts to answer the question, “How much privacy do employees really have at work?” The short answer – not much, but maybe more than you think.

• Mindy Chapman’s Case in Point, on employees’ access to restroom breaks.

• Paul Secunda, at the Workplace Prof Blog, who discusses the case of a New Zealand employee terminated for the egregious workplace crime of using ALL CAPS in emails.

Enjoy your Labor Day weekend. I’ll be back Tuesday with my thoughts on forced retirements under the ADEA.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Study of American working conditions presents opportunity for employers to tune up legal compliance

Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.

According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.

The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:

• 26% of employees reported being paid less than the minimum wage.
• 76% of employee who work overtime reported not being paid the legally required overtime rate.
• Of the 25% who claimed off the clock work, 70% reported it was unpaid.
• 41% of employees who had money deducted from their pay reported illegal deductions.
• Of the 20% of employees who reported making a complaint to management or trying to start a labor union, 43% experienced some form of retaliation.
• 50% of employees who reported workplace injuries to their employer claimed some form of retaliation.
• 68% experienced some pay-related violation.

You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:

• This week, the Justice Department announced that it would hire an additional 50 attorneys to increase its enforcement of civil rights violations.
• The Department of Labor previously announced that it would be stepping up enforcement of its Wage & Hour Division.
• One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations.

What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.

I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Sexual orientation is not a proxy for religious discrimination

Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.

Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.

In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:

• Pedreira claimed that living openly as a lesbian did not comply with her employer’s religion, and that she was terminated because she did not hold its religious belief that homosexuality is sinful.
• Prowel claimed that his co-workers harassed him because his homosexuality did not match their religious views.

The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.

It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Fake job references?

More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.

It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.

Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.