Lord of the pants - When is the right time to countersue?

This morning's USA Today is reporting that famed Irish dancer Michael Flatley has won an $11 million judgment against a woman who had accused him of raping her in a Las Vegas hotel room. According to the article, the woman threatened to sue Flatley unless he agreed to a "seven figure" settlement. When he refused, she sued him, but the case was dismissed. Flatley responded with a lawsuit against the woman and her lawyer, alleging extortion, intentional infliction of emotional distress, and defamation.

While the Flatley case does not involve an employer/employee relationship, it is nevertheless interesting to look at in relation to the Ohio Supreme Court's decision last week in Greer-Burger v. Temesi. I cautioned that employers should tread lightly in filing lawsuits against employees who have engaged in protected activity. Flatley illustrates one situation where it might make sense to file a lawsuit against an employee - where the value of one's personal reputation is harmed by the mere filing of the employee's claim. For example, a CEO or celebrity accused of sexual harassment has a lot to lose even by having a meritless claim alleging sexual misconduct filed against him or her. Another example that comes to mind, although not implicated by the Flatley case, is where an employee has stolen trade secrets. In those examples, the individual or the company has something of value to gain other than mere retribution.

The decision of whether to file a claim against an employee or ex-employee is not an easy one, and should not be undertaken without careful thought, a clear strategy of the goals to be achieved, and consideration of whether those goals are worth the risk of defending against a likely retaliation claim or the perception in court that the counter-suit is merely retaliatory. For Michael Flatley, the decision was a no-brainer, as he was being accused of rape and being extorted. For your company, the decision should be of the same degree of certainty before a similar decision is reached.

The Fox who cried wolf: 6th Circuit finds that mere discussions of a pending lawsuit does not amount to protected activity

If an employee files a charge of charge of discrimination, and then openly discusses with others his strong desire to sue the company for discrimination, do those discussions constitute "protected activity" under the anti-retaliation provisions of the employment discrimination statutes. According to the 6th Circuit's ruling late last week in Fox v. Eagle Distributing Co., the answer is no.

After being passed over for a promotion, James Fox filed a charge of discrimination. After filing that charge, he repeatedly told co-workers and customers that the company was out to get him, and that he was going to sue the company for $10 million. Other than his charge of discrimination, however, he never told anyone that he believed he was the victim of age discrimination. When the company found out that he had been complaining to customers, it fired him for a "poor attitude" which impeded the company's ability to develop good customer relations. Fox then claimed that he was being retaliated against. The only protected conduct he alleged was his boasts that the company was out to get him and that he was going to sue the company.

The 6th Circuit affirmed the trial court's dismissal of Fox's retaliation claim. It reasoned that Fox had not engaged in protected activity because he had never complained that he had been discriminated against. According to the 6th Circuit, to qualify as protected activity, the opposition must be tied to a violation of a specific statute, and not merely generalized grievances.

We conclude that Fox’s discussion with Poplin is not protected activity under the ADEA and, therefore, Fox has failed to establish a prima facie claim of retaliation. Specifically, we hold that Fox’s statements to Poplin are not protected because they did not amount to opposition to an unlawful employment practice by Eagle. In order to receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation of the ADEA.... Here, the record does not contain any evidence that Fox specifically alleged discriminatory employment practices in his discussion with Poplin. In her affidavit, Poplin states that Fox mentioned suing Eagle and "that he had made comments about not getting promoted to a pre-sell position.... Although Fox’s lawsuit against Eagle alleged age discrimination, Poplin did not state – either in her affidavit or as recounted in the personnel memo – that Fox alleged that he was denied the promotion due to age discrimination or that Eagle engaged in any unlawful employment practices."

In other words, a vague charge that management is out to get an employee, and discussions of a pending lawsuit without specific reference to alleged discrimination are insufficient to constitute opposition of an unlawful employment practice and does not merit protection.

Typically, companies should treat employees who have alleged discrimination with kid gloves. The lesson to take away from this case is that no employee is protected from termination merely because he or she files a charge of discrimination or a lawsuit. Eagle got off because Fox did not complain in the right way, These issues, however, operate in very gray areas, and companies would be wise to move cautiously if deciding whether to fire an employee like James Fox - a disgruntled employee with a history of crying discrimination.

Some shameless self-promotion

I'm quoted in an article in Business Insurance Magazine on the Greer-Burger vs. Temesi Ohio Supreme Court retaliation decision:

Jonathan T. Hyman, an employer attorney with Kohrman Jackson & Krantz P.L.L. in Cleveland, said the decision was correct.

The court “was basically balancing employees’ right against retaliation against anybody’s right under the First Amendment of the Constitution to petition the court and file a lawsuit,” said Mr. Hyman, who was not involved the case. “When you’re balancing degrees of importance, the Constitution is going to, and should, trump” the employee’s right against retaliation.

He added, though, that employers should “think long and hard” before filing such suits against employees. The employee’s attorney would likely allege that such a suit is retaliatory, he said.

Employers “face an uphill battle in the courtroom anyway” because those who serve on juries are more likely to be employees than employers, said Mr. Hyman.

To read the full article, click here.

What else I'm reading this week #9

Not surprisingly, another active week across the blogosphere. Please support my fellow bloggers by checking out some of these links.

We'll start out with a couple of wage and hour issues. The Pennsylvania Employment Law Blog cautions companies that there are tricks and traps involved in holiday and year-end bonuses, and to watch out for wage and hour mistakes. Meanwhile, the Evil HR Lady answers a question on the legality and advisability of making deductions from the salary of an exempt employee for time away from work (hint, don't do it, as I advised back in June).

John Phillips, at The Word on Employment Law, has posted the 1st half of a 6-part series on the art of firing employees. (Part I, Part II, and Part III). The highlights so far - fairly evaluate performance, use progressive discipline, be consistent, and document everything. Good, basic, sound advice for all companies to follow. John tells me that Parts IV, V, and VI will be posted in the coming days, so keep an eye out for them.

HR World asks the question, "Are you pregnancy-friendly?", and suggests that such an approach is needed to prevent the loss of talented employees to motherhood.

Finally, Kris Dunn, The HR Capitalist, reports on the proposed Healthy Families Act, which would require employers with more than 15 employees to offer full-time employees seven days of paid sick leave.

House passes expansion of FMLA for military families

By an overwhelming vote of 370-49, the House yesterday approved legislation that would, among other things, expand FMLA leave rights for the families of wounded service members. President Bush will be hard-pressed to veto a bill that also authorizes $696 billion in military programs. If enacted, the legislation will amend the FMLA and provide up to 6 months of leave to family members (i.e., spouse, son, daughter, or parent) of combat-injured service members to care for their loved ones. Click here for the text of section 675 of the National Defense Authorization Act for Fiscal Year 2008.

Hat tip to The FMLA Blog.

The year's worst employees

It's the time of year when everyone is putting out their year-end best of lists, and the employment realm is no exception. Careerbuilder.com has published its list of the year's worst employees. If you thought your company had some doozies, check out the list, available here: Worst Employees of the Year.

My personal favorite:

An off-duty airline employee was arrested on assault charges after he sat down next to a woman trying to sleep and allegedly touched her inappropriately, according to an affidavit filed with a complaint from the woman. The employee was charged with simple assault and was suspended from the airline until further review of the incident.

Feel free to comment with your best employee horror story from the past year.

Ohio Supreme Court holds that an employer's lawsuit against an employee who has engaged in protected activity is not per se retaliation

This morning, the Ohio Supreme Court issued a significant retaliation decision, Greer-Burger v. Temesi, which holds that "an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in protected activity." In so ruling, the Court stated that it is balancing "the statutory right of an employee to seek redress for claims of discrimination without retaliation against the constitutional right of an employer to petition courts for redress."

The facts of the case are as follows. In 1998, Tammy Greer-Burger filed a sexual harassment suit against Lazlow Temesi. The case proceeded to trial, at which Temesi prevailed. Thereafter, Temesi filed suit against Greer-Burger seeking to recover the $42,334 in attorneys fees and costs he had incurred defending against the harassment suit, plus compensatory and punitive damages. In response to Tamesi's lawsuit, Greer-Burger filed a charge of discrimination with the OCRC, claiming that Temesi's lawsuit was retaliation for her protected conduct, the prior sexual harassment suit. Based solely on the fact that Temesi had filed suit, the OCRC found that Tamesi's lawsuit was prohibited retaliatory conduct, and ordered Temesi to immediately cease and desist from pursuing his lawsuit and to pay Greer-Burger the $16,000 she claimed to have expended in defending against it. The common please court and appellate court both affirmed the OCRC's decision.

In reversing the lower courts, the Supreme Court started and ended its analysis with the First Amendment's fundamental right to petition and seek redress in the courts. Despite the fundamental nature of that right, the Court recognized that the right to access courts is not absolute. The First Amendment does not protect "sham" litigation, that is, an objectively baseless lawsuit such that no reasonable litigant could expect success on the merits. To find that the mere act of filing a lawsuit is per se retaliatory, in the words of the Supreme Court, would "undermine the right to petition for redress by giving an administrative agency the power to punish a reasonably based suit filed in court whenever it concludes ... that the complainant had one motive rather than another.... This danger is further highlighted when the only evidence of the complainant's retaliatory motive is the simple act of filing a lawsuit." (internal quotations and citations omitted).

Because of the McDonnell Douglas burden shifting analysis used in retaliation cases, the Court placed the burden on the employer to demonstrate, as its legitimate non-retaliatory reason, that an alleged retaliatory lawsuit is not objectively baseless:

Instead, we find it more prudent to permit an employer the opportunity to demonstrate that the suit is not objectively baseless. In determining whether the employer’s action has an objective basis, the OCRC administrative law judge should review the employer's lawsuit pursuant to the standard for rendering summary judgment.... Thus, an employer needs to show his lawsuit raises genuine issues of material fact. If the employer satisfies this standard, the suit does not fall under the definition of sham litigation. The suit, therefore, shall proceed in court while the proceedings before the OCRC shall be stayed. The procedure outlined above falls within the jurisdiction of the OCRC as provided for in R.C. 4112.04 and promotes judicial economy because the employer's lawsuit will not have to be fully litigated in the trial court before the OCRC can make its determination as to the reasonableness of the suit. In this way, the OCRC essentially shall vet the action to ensure it is not sham litigation. (internal quotations and citations omitted)

The majority opinion concluded by recognizing the stigma of being falsely accused as a discriminator, and the importance of being able to seek legal redress to remedy that misclassification:

An employee's right to pursue a discrimination claim without fear of reprisal is a laudable goal entitled to considerable weight. The OCRC's position in this case, however, has the potential to give employees a carte blanche right to file malicious, defamatory, and otherwise false claims. As the concurring opinion of the appellate court astutely noted, the per se standard advocated by the OCRC does not advance the goal of Chapter 4112 when it "permits a claimant to engage in any kind of slander or defamation, and possibly even perjury, without consequence," and then precludes "those falsely accused of being discriminators from seeking legal redress." Greer-Burger, 2006-Ohio-3690, ¶ 38 (Corrigan, J., concurring).

Just because employees do not have carte blanche right to file malicious, defamatory, or otherwise false claims, does not mean that employers should rush into court to clear their names. Instead, employers should be wary in using Greer-Burger v. Temesi as carte blanche for filing lawsuits against unsuccessful discrimination plaintiffs. As the concurring opinion correctly points out, "the majority's 'not objectively baseless' test sets a very low threshold...." Merely because this case gives companies the apparent right to file a claim does not mean ultimate success on that claim. Indeed, the decision whether to pursue a claim against an employee or ex-employee who has brought a discrimination claim must be carefully thought out, and not merely filed as a knee-jerk reaction to being sued.

Should companies move their employment work to small and mid-sized law firms?

Last week, the Legal Intelligencer, as posted on Law.com, reported on the filing of a legal malpractice lawsuit by a nonprofit agency, the The Bair Foundation, against one of the world's largest law firms, Reed Smith. Now, you may ask yourself, why would the Ohio Employer's Law Blog care about a legal malpractice lawsuit filed in suburban Pittsburgh. The answer comes in two parts: 1) the underlying case was a religious discrimination case that was tried in federal court in Cleveland and resulted a nearly $200,000 jury verdict, and 2) the Bair foundation was charged $960,409 to defend the garden-variety discrimination case. According to the Law.com article:

The foundation said in the complaint that it was originally told the case would cost them $50,000. That was then upped to $112,000 during the case....

"In implementing its ambitious strategy of capturing global clients, which Reed Smith boasts results in 'a constant increase in revenue per partner,' it has acknowledged that comparatively small regional or local law firms can or perhaps should service smaller clients," the complaint stated. "This is so because such firms typically charge much lower fees than 'white shoe' international law firms like Reed Smith and are therefore more affordable to these smaller clients. However, Reed Smith has inexplicably continued to represent certain much smaller clients which lack substantial financial resources, such as Bair, a not-for-profit charitable foundation."

The foundation's [current] attorney, Bruce C. Fox of Obermayer Rebmann Maxwell & Hippel in Pittsburgh, said no explanation was ever given as to why the fees increased to nearly $1 million. He said his client was "badly taken advantage of."

Fox said he doesn't think large, international firms should represent clients like the Bair Foundation because of global law firms' economic models.

The lawsuit alleges inappropriate billing practices, including over-staffing the case, failing to adequately describe billing entries by subject matter or activity, and raising billing rates without notice.

The Bair Foundation's predicament illustrates two key trends to watch in the legal profession for 2008, as discussed in Robert Denney Associates' 19^th Annual Report on What’s Hot and What's Not in the Legal Profession (hat tip to Tom Kane at The Legal Marketing Blog): Labor and Employment continues to be a hot practice area, and mid-size firms are thriving by "attracting clients faced with the high rates – and often poor service – of the large firms." KJK has 31 lawyers, so I have a stake in this discussion. That stake, however, does not change the fact that the small and mid-size firms have as much to offer, if not more, than the large institutional firms. It's not just a question of hourly rates, but also more economical staffing, increased efficiency, and better client communication, all with the same or better quality of legal work. My hope is that these issues cause companies of all sizes to consider small and mid-sized law firms the next time they are sued in an employment case.

Supreme Court grants cert petition in Huber v. Wal-Mart Stores

Huber v. Wal-Mart Stores poses the following question: if an employer has an established policy to fill vacant job positions with the most qualified applicant, is that employer nevertheless required to reassign a qualified disabled employee to a vacant position even if that disabled employee is not the most qualified person for the job. The Supreme Court has agreed to review the decision of the 8th Circuit, which answered that question in the negative.

Pam Huber worked for Wal-Mart as a dry grocery order filler, earning $13 per hour. A permanent injury to her arm and hand left her unable to perform the essential functions of her job. As a reasonable accommodation for her disability, Huber asked that Wal-Mart reassign her to a vacant and equivalent position. Instead of agreeing to reassignment as the reasonable accomodation, Wal-Mart told Huber that she could apply and compete for the position. Huber ended up not being the most qualified applicant. Wal-Mart hired someone else for the job, and placed Huber in a janitorial position that paid her less than half of what she made before her injury.

Huber filed suit under the ADA, claiming that she should have been reassigned to the open position as a reasonable accommodation. Wal-Mart defended on the ground that it had a legitimate non-discriminatory policy of hiring the most qualified applicant for all job vacancies and was not required to violate that policy to accommodate Huber's disability. In a very rare instance, the trial court granted summary judgment in Huber's favor, which the 8th Circuit reversed.

The 8th Circuit's analysis starts with the general principle that reassignment to a vacant position generally qualifies as a reasonable accommodation under the ADA. According to the 8th Circuit, however, the ADA is not a mandatory preference act, and it should not violate the ADA for an employer to make a legitimate non-discriminatory decision to hire the most qualified candidate, even if it results in a disadvantage to a disabled employee. Also, the ADA does not entitle a disabled employee to his or her preferred accommodation, only a reasonable accommodation. Thus, the 8th Circuit concluded: "The ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. To conclude otherwise is affirmative action with a vengeance. That is giving a job to someone solely on the basis of his status a member of a protected class." (internal quotations omitted).

It is unclear in the 6th Circuit how this case would have come out, and there are courts (such as the 10th Circuit) that differ and hold that the ADA requires employers to automatically award an open position to a qualified disabled employee if even better qualified applicant are available and despite an employer's policy to hire the best person for the job.

A ruling for the employee in this case would undermine one of the most important commandments of employment law - Thou shalt hire the most qualified person for all open positions. When you don't hire the best person, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Which illustrates another important principle of employment law - when you're explaining, you're losing.

Has the time come for a workplace porn audit?

Last week I wrote about the importance of monitoring workplace technology in the context of a Second Circuit case, which held that the mere presence of pornography in the workplace can be enough to create an objectively hostile work environment (Computer awareness should be important part of harassment policies and training). This lesson hits a little closer to home today, as the Cuyahoga County Court of Appeals has reversed a trial court's grant of summary judgment in a sexual harassment case. In Johnson v. Olmsted Township, the plaintiff, a female police department employee, claimed that a male co-worker had once shown her a pornographic magazine and had once comments about her putting her legs behind her head. Based on those two isolated incidents, the appellate court found that a jury question existed on the severity or pervasiveness of the alleged conduct:

A single act of sexual harassment may be sufficient to create a hostile work environment if it is such a nature and occurs in such circumstances that it may reasonably be said to characterize the atmosphere in which a plaintiff must work. David subjected Johnson to the pornographic magazine in the company of other male officers. The episode a few months later where Davis commented on his perception of Johnson's agility was also made in the presence of male coworkers. The presence of male coworkers makes Davis' act humiliating, which can be considered severe.

If an appellate court is going find two isolated incidents sufficient to hold a jury trial in a harassment claim, perhaps companies have to rethink internal initiatives to head off lawsuits involving porn in the workplace. The headline may be tongue-in-cheek, but the message is real - courts will be more prone to give employers a pass in cases where they acted proactively in trying to rid the workplace of porn than where they stuck their heads in the sand and failed to sanitize the environment.

What else I'm reading this week #8

The Evil HR Lady has had a busy week:

Internal Policy, on whether a company has an obligation to rehire a former employee.

Dress Codes, giving some advice on workplace dress codes and how to address violations.

Pregnancy, also from the Evil HR Lady, on when is the best time for a pregnant employee to disclose the fact of her pregnancy.

While we're on the topic of pregnancy/leaves of absence, take a look atTaking Time Off From Work Without Fearing a Pink Slip, from the Wall Street Journal's CareerJournal.com, on the general legal issues surrounding medical leaves.

New report claims workplace bills would kill jobs, from WorkplaceHorizons.com, on a report by Congressional Republicans detailing how the recent rash of Democratic employment legislation will end up costing people jobs.

Inclement Weather Policies: Don't Get Lost in the Storm, from the Pennsylvania Employment Law Blog, discussing inclement weather policies.

Age Discrimination Releases and Remedies from Suits in the Workplace, reporting on two recent federal court decision dealing with the enforceability of age discrimination releases under the Older Workers Benefit Protection Act.

Finally, How to Get Recruiters To Sign a Contract NOT To Poach Your Employees, from The HR Capitalist, on the wisdom of no-poaching agreements.

Don Imus case illustrates the difficulty of dealing with language in the workplace

There's been a lot of ink spilled this week in both the print media and the blogosphere about the return of Don Imus to the airwaves. (See Who’s the language police for Don Imus? and Imus Is Back, Chastened but Still Proudly Obnoxious). Recall that CBS Radio and MSNBC fired Imus in April after a firestorm erupted from his calling Rutgers women's basketball players "nappy-headed hos." In a post on The Word on Employment Law, John Phillips suggests most HR professionals and employment lawyers would agree with Imus's termination, and that often such comments by senior management and executives are overlooked because "money talks." That argument ignores CBS's hypocrisy in firing Imus over the type of statement that made him such a valuable commodity in the first place. Imus's popularity, and his ability to make millions of dollars for his employers, stems from his controversial nature and his propensity to make comments such as "nappy-headed hos." In fact, he has said much worse over the years, and, once he feels safe in his new job, will probably do so again. That is why he has a job in the first place.

It's difficult to draw any generalized employment law lessons from the Don Imus case because his case is so unique, just as it is difficult to draw any lessons on collective bargaining from the Writers Guild strike. Suffice it to say that language in contextual - it always has been and it always will be. In most contexts and most workplaces, "nappy-headed hos" should not be tolerated, and should result in an investigation, appropriate discipline, and some diversity and sensitivity training. These obligations exist whether an employee complains or not, as supervisors and managers have an affirmative duty to stamp out offensive conduct and the use of offensive language when they come across it or learn of it. The best lesson to draw is simply that companies act at their own peril by condoning or ignoring the use of offensive language in the workplace.

Binghamton University considers adding a law school

You may wonder why a lawyer in Cleveland, Ohio, would care if Binghamton University (nee, the State University of New York at Binghamton) is thinking about opening a law school. I happened to have spent my formative years studying (and other things) in the gray, snowy hills of the Southern Tier. Comments to this news on the Wall Street Journal's Law Blog are not very positive, and repeatedly question whether there is a need for another law school. Let me suggest that BU has an opportunity to think outside the box and try something different with legal education in this country. Whether it's less of a focus on the Socratic method and more on practical lawyering skills, problem solving, and case studies, integrating actual legal practice into the required curriculum through a clinical and internship program integrated with the community, or something else entirely, Binghamton can set itself apart by starting from scratch with a new kind of legal education that gives students an alternative. I'm proud to be a Binghamton alum, and I am proud that it is thinking about branching out into my chosen profession. I hope it continues to make me proud by creating a first rate legal institution. Qualifying for March Madness this year would be nice too.

EEOC issues guidance on testing and selection procedures

The EEOC yesterday published a fact sheet offering some guidance for employers on the use of employment tests and selection procedures, and how they are treated under the anti-discrimination laws. Some examples of such tests and selection procedures are cognitive tests, physical ability tests, sample job tasks, personality tests, medical exams, psychological tests, English proficiency tests, credit checks, and criminal background checks. The latter two are also covered by the Fair Credit Reporting Act, which requires specific written consent by the employee, along with other specific notice and disclosure requirements (check with your counsel). The EEOC recommends that Title VII, the ADA, and the ADEA be taken into consideration in the application of any of these tests or selection procedures. For example (and not to state the obvious), do not give whites one test and blacks another, or give an agility test only to employees over the age of 40 (I'm not making this up).

The area where the discrimination laws are usually implicated is when a neutrally applied test disparately impacts one group over another. For example, does a physical exam that is given to all job applicants disproportionately screen out female applicants? If it does, is it otherwise job-related and supported by business necessity? Typically, if a neutrally given test evaluates one's skills as a related to the particular job in question it will usually past muster.

The ADA has specific statutory provisions and regulations that apply to medical inquiries and testing:

• When hiring, an employer may not ask any questions about disabilities or require medical exams until after it makes a conditional job offer to the applicant.
• After making a job offer, but before the individual starts working, an employer may ask disability-related questions and require medical exams as long as it does so for all individuals entering the same job category.
• With respect to current employees, an employer may ask questions about disabilities or require medical exams only if doing so is job-related and consistent with business necessity. Examples of permissible inquiries of testing of current employees would be if the employer has a reasonable, objective belief that an employee cannot perform the job's essential functions or will pose a direct threat because of a medical condition, or if an employee requests a reasonable accommodation.
• Reasonable accommodations must be made in any employment testing or screening to enable a qualified individual with a disability to take the test, unless such accommodation poses an undue hardship.
• All employee medical information must be kept confidential, maintained securely and separately from personnel files, and only disclosed to supervisory personnel on a need to know basis.

The EEOC also gives some employer best practices for testing and selection. Many of these are common sense, but for the sake of completeness, I am going to list them all anyway:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer's purpose. While a test vendor's documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the EEOC's Uniform Guidelines on Employee Selection Procedures.
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

For more information, the EEOC's Fact Sheet on Employment Tests and Selection Procedures is available here.

BREAKING NEWS: State halts new maternity leave regulations

So I've been saying for the past few months that once the OCRC adopted its new maternity leave regulations, passage by the legislative Joint Committee on Agency Rule Review would be a mere formality. Boy do I have egg on my face.

In a 9-1 vote, the JCARR sent the new regulations back to the OCRC for a more complete fiscal analysis. The Committee was unhappy that the OCRC said there would be no fiscal impact on school districts or local governments from the rule change. Today's Plain Dealer quotes State Senator and JCARR member Tom Niehaus, who cited as an example a small township police department that would be forced to cover shifts for a pregnant employee and pay overtime costs. Sen. Niehaus also expressed concern as to whether the OCRC has the authority to enact these regulations, although the Committee as a whole sidestepped that issue. The OCRC must now wait at least 90 days before returning with an updated application for the rule change. One now has to question whether the JCARR will ever approve the new regulations.

The bottom line for employers is that for now the old rule remains, that women must given a "reasonable" amount of time off work for maternity leave. I caution, however, that courts that have looked at the current 4112-05-5(G) have interpreted 12 weeks as "reasonable" because it is what the FMLA provides.

How far to the right has the Supreme Court swung?

In reporting on yesterday's oral argument in Sprint/United Management v. Mendelsohn, the New York Times asks the question: "Has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" The answer will not be known until all of this term's employment cases have been decided, but yesterday's oral argument may give us a clue that employees could have a tough go under the Roberts Court.

Many of the Justices seemed very concerned that the admission of "me, too" evidence in discrimination cases would lead to mini-trials of each "me, too" witness. The Justices were also concerned that admission of "me, too" testimony would require correlative admission of "but not us" witnesses in rebuttal by the employer. Trials that could last a mere two days could "last a thousand years," in the words of Justice Breyer, who is not known for his conservative views. The Justices questioned whether it was just simpler and cleaner to exclude the evidence in all but the clearest of cases, such as when the same decisionmaker is involved. After reading the argument transcript, I stand by yesterday's prediction -- the Court will hold that the appellate court erred in reversing the trial court's discretionary exclusion of the "me, too" evidence, and rule that such evidence is neither per se admissible or inadmissible in discrimination cases, but is left to the sound discretion of the trial court under Evidence Rule 403. The Court may also set forth some guideposts for trial courts to follow in exercising its discretion, such as whether the same decisionmaker was involved in the decision to terminate the "me, too" witnesses, or whether there is objective, independent evidence of a policy or practice of discrimination.

Supreme Court to hear arguments today on issue of "me too" discrimination

Sprint/United Management v. Mendelsohn, which will be argued today at the Supreme Court, raises an important evidentiary issue that arises time and again in discrimination cases: "whether a district court must admit 'me, too' evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." Although this is an age discrimination case, the Court's holding will almost certainly affect race, gender, and other discrimination lawsuits. The issue is important for businesses, as permitting "me, too" evidence of discrimination will likely make discrimination cases more time-consuming, expensive, and difficult to defend, by forcing companies to defend against allegations brought by employees not parties to the lawsuit.

The facts of Mendelsohn are relatively simple. Ellen Mendelsohn, 51 years old, was one of 18 people in her group laid off by Sprint in the fall of 2002. Company-wide, Sprint laid off 15,000 employees. Sprint claimed that it included Mendelsohn in the RIF because of poor job performance. Mendelsohn claimed age bias in the decision.

At trial, she sought to call five other former Sprint employees, all over the age of 40, to testify that they too suffered age discrimination at Sprint. Sprint objected on the grounds that none of those five employees had worked for the same supervisor who had made the decision to lay off Mendelsohn. The district court agreed, and ruled that only workers laid off by the same supervisor could be called to testify. Ultimately, the jury ruled in Sprint's favor.

The 10th Circuit reversed, ruling that a district court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. It rejected Sprint's contention that the testimony was irrelevant because the witnesses were not terminated by the same supervisor as Mendelsohn. The court concluded that Mendelsohn was entitled to show that there was an unwritten "company-wide policy" of discrimination, under which multiple supervisors, and not just Mendelsohn's, were participating. Further, the court was unconcerned whether there was any evidence substantiating the existence of such a policy other than the plaintiff's subjective belief. Instead, the court found that the evidence is relevant and admissible because a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

There are any number of reasons why this decision should be reversed. In a discrimination case liability can only be shown by demonstrating discriminatory intent on the part of the decisionmaker (i.e, the person who made the relevant employment decision). Mendelsohn's five "me, too" witnesses, however, could offer nothing to show that Mendelsohn's supervisor acted with discriminatory intent. Additionally, no one had any proof that the various different decisionmakers were acting under some common scheme or plan, other than their own unsupported subjective beliefs. I would concede that the case would be different if there was some independent corroboration of a company-wide policy. Finally, I question the appellate court's reversal of a district court's discretionary evidentiary ruling.

This case will also be interesting from a Court-watching perspective, as it will be the third substantive employment decision out of the the Roberts Court. Last term, the Court was 1-1 in employments cases, with the Ledbetter pay discrimination case coming down for the employer, and the Burlington Northern retaliation decision for the employee. My prediction — a reversal with a holding that "me, too" evidence is not per se admissible in discrimination cases. Dicta will make it clear that such evidence is relevant when it is from the same decisionmaker, or from a different decisionmaker with independent evidence of a company-wide policy of discrimination.

A copy of the oral argument transcript is available from the Supreme Court here.

What else I'm reading this week #7

It's been a busy week in the blogosphere. Everyone is back at work, having digested their turkey and probably having started their holiday shopping. So, it is appropriate that we begin our weekly roundup with the following:

Beating the Crowds: Online Shopping at Work?, from HR World, on the monitoring of employees' use of work computers for holiday shopping.

Is the Family Leave Act Too Soft or Too Tough?, from the Wall Street Journal's Career Journal, debating whether the FMLA is too small of a benefit to employees or too big a burden to employers.

Exploring Tough Questions on E-Mail Confidentiality, from Ediscoveryinfo, noting the importance of reminding your employees that e-mails are not confidential. The advice that I always tell people in regards to whether to put something in an email -- if you do not want it read by your boss, shown to a jury, published on the front page of your local newspaper, or seen by your mother, it is probably best not to send it.

Business Week: "Unions: Less Impact and a Lower Profile", from The Union-Free Employer, commenting on the shrinking importance of labor unions in today's business climate.

Layoffs and Reductions in Force: Five Things every HR Generalist should know, from the Pennsylvania Employment Law Blog, giving a rundown of hot-button issues for mass layoffs and reductions in force.

Finally, we started with an issue of importance for the holiday season, and we'll finish with a couple of others:

Employer Liability at Office Holiday Parties - Beyond Sexual Harassment, Part I and Part II, from the Connecticut Employment Law Blog, summarizing the legal issues other than sexual harassment liability that can arise from over-lubricated employees at holiday parties.

For another reason why not to overindulge at the office holiday party:

Cheers!

Computer awareness should be important part of harassment policies and training

Danial Schwartz at the Connecticut Employment Law Blog posted yesterday on a case from the Second Circuit, which held that the mere presence of pornography in the workplace can be enough to create an objectively hostile work environment. Danial's point is similar to one that I wrote about couple of weeks ago, that businesses must take all harassment complaints seriously through prompt and thorough investigations. (See Remedial action must be meaningful to save employer from harassment liability).

Danial's post raises another important issue. Computers, email, and the Internet have become indispensable tools in most workplaces. They also make pornography readily available at the click of a mouse or the strike of a key. If courts are going to view the mere presence of pornography in the workplace sufficient to state a claim for sexual harassment, then employers must be vigilant about policing against it. This policing requires three important steps:

1. Implement a technology use policy (which includes computers, email, and the Internet), which patently forbids the downloading, display, or viewing of pornography, and makes it a terminable offense.
2. Incorporate training on the appropriate use of technology into your annual or every-other-year harassment training.
3. Consistently enforce the policy.

As I've repeatedly said, there is no such thing as a bulletproof employer. Taking these three simple, proactive steps, however, will go a long way towards limiting your risk and exposure should an employee file a harassment lawsuit based on workplace pornography.

Carnival of HR #21

The Carnival of HR (#21 for those keeping count) is available at Race in the Workplace. For those unfamiliar with the Carnival of HR, it is a traveling semimonthly compilation of the best HR-related posts in the blogosphere. Please jump on over to Race in the Workplace and support the efforts of the many bloggers who are linked.

ADA may require leaves of absence beyond FMLA mandates

Managing medical leaves of absence is the bane of nearly every HR department I come in contact with. In my experience, companies either react too harshly (immediate termination upon the expiration of 12 weeks of FMLA-eligible employees), or too passively (extending leaves of absence indefinitely). HR World has posted an interesting article on extending FMLA leaves of absence beyond 12 weeks, and attempts to strike a balance by asking how long is too long.

The article points out that a company may want to extend a leave beyond 12 weeks so as not to lose a valuable employee. The issue, however, runs much deeper, and under certain circumstances an extended unpaid leave of absence might be required as a reasonable accommodation under the ADA for employees with a qualifying disability. The ADA's regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an otherwise qualified individual with a disability. 29 C.F.R. § 1630.2(o). Thus, an employer may still have to provide unpaid leave as a reasonable accommodation: 1) after an employee exhausts the 12 weeks of FMLA leave, or 2) if an employer has fewer than 50 employees or if the employee has less than one year of service.

The EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (at Q. 21) gives the following helpful example:

An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

No leave must be extended indefinitely, and at some point a leave of absence is going become an undue hardship to the employer and can be ended. When that is, though, is not only going to vary from employer to employer, but also from employee to employee. Each specific leave of absence must be analyzed on its own merits, case by case. Six months is generally a good rule of thumb to follow, but there are many circumstances where a court could deem six months unreasonably short. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.

New I-9 form released - UPDATED

While not the most exciting news, all companies should update their hiring forms with the new I-9 available from the U.S. Citizenship & Immigration Service. Use of the new form will become mandatory on December 26. Because no one knows for certain when this will occur, it is best to put the new form in place now to avoid incurring any fines or penalties for non-compliance. The new form only applies to new hires. Employers do not have to re-verify the immigration status of employees who have already completed I-9 forms.

The changes to the I-9 are as follows:

• 5 documents have been removed from List A of the List of Acceptable Documents -- Certificate of U.S. Citizenship, Certificate of Naturalization, Alien Registration Receipt Card, Unexpired Reentry Permit, and Unexpired Refugee Travel Document.
• One document -- Unexpired Employment Authorization Document -- was added to List A.
• All Employment Authorization Documents with photographs have been consolidated as one item on List A.
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number, unless the employer participates in E-Verify.
• Employers may now sign and retain Forms I-9 electronically.

As always, employers do not file I-9 forms with the government, but must keep them either for three years after the date of hire or for one year after employment is terminated, whichever is later. All completed forms that fall within that time frame must be available for inspection by authorized U.S. government officials (such as Immigrations & Customs Enforcement or the Department of Labor).

Employers should use the publishing of this new I-9 form as a tickler to review and update document retention policies to ensure that the retention of I-9s is provided for, or to put a document retention policy in place if one does not exist.

Information about the new I-9 form, as well as a copy of the form for download, are available at www.uscis.gov/i-9.

The downside of family-friendly workplaces

Over the Thanksgiving holiday, Dilbert ran a small arc on family responsibility discrimination. The company decides to become "family friendly", and to compensate for the lost productivity, openly hostile to single people at the same time. So as not to run afoul of any potential copyright issues, you can go here to read the 11/22 strip and here to read the 11/23 strip.

While eating my leftovers, I got to thinking about what exactly it means to be "family friendly," and whether we are creating a new marginalized class of employees -- the young, the single, the childless -- all of whom are presumed to have the disposable time to work extra hours and pick of the slack for those who are the beneficiaries of family-friendly policies and the EEOC's new regulations against family responsibility discrimination. But, just because they are presumed to have disposable time, does that mean that they should necessarily bear the burden?

There are two ways to look at this issue. On the one hand, those without family responsibilities will in all likelihood some day have a family, and will need the same family-friendly policies about which they may now grumble and complain. On the other hand, managing a "family friendly" workplace is not just managing employees who have families and their attendant responsibilities, but also managing the employees without families, upon whom the added burden of picking up the slack for their co-workers often falls.

I have no answers as to the right approach. How to handle the problems posed by the Dilbert strips is largely an organizational issue. I am curious, though, to find out if my readers think that this is even a problem, and if so, how it should best be handled. Please post your thoughts below.

OCRC rebukes Govenor's attenpt to stall new maternity leave rules

I was planning on taking the holiday weekend off, but then Governor Strickland had to publicly come out against the adoption of the new pregnancy leave regulations.

According to this morning's Cleveland Plain Dealer, Ohio's Governor has asked the Ohio Civil Rights Commission to indefinitely delay its implementation of new maternity leave rules. The Governor said Ohio's businesses need more time to study the proposed maternity-leave timeframe, which will grant up to 12 weeks of medically recommended leave for pregnancy, childbirth, and related medical conditions for every female employee of virtually all Ohio businesses. The OCRC politely rejected the Governor's plea, and will send its proposed rule to the legislative rule-making committee for consideration on December 3 as planned. The Commission Chairperson, Barbara Sykes, a Strickland appointee, said that the Commission has already granted a concession to businesses by making the duration of the leave tied to the employee's doctor's medical approval.

The adoption of these new rules get more bizarre with every turn. First, the "medically recommended" language was slipped in at the 11th hour with no fanfare. Now, the state's Democratic governor, swayed by business interests, is asking his appointee to delay adoption of a measure that is is largely lauded by members of his own party. While it is doubtful that the legislative rule-making body would block these regulations, nothing would surprise me at this point. Everyone should assume that the new rules will go into effect as planned, but continue to watch this blog for further updates on Ohio's new pregnancy leave regulations.

What else I'm reading this week #6

Happy Thanksgiving everyone. I'll be taking a much needed few days off, from both the hectic practice of law and the frantic blogging I've been doing. For everyone's holiday reading pleasure, another batch of worthy clicks:

Age Discrimination–Solutions, from The Word on Employment Law, providing some dead-on practical advice on how to guard against age claims.

Federal Judicial Center: Plaintiffs Doing Relatively Well in Federal Employment Discrimination Cases, from the Workplace Prof Blog, giving us the surprising statistic that only between 9-14% of employment cases are dismissed on a summary judgment in the federal court system.

Worker Uses Version Of "The Dog Ate My Homework", from Legal Juice, jumping over the pond to Ireland to give us the story of an employee awarded 1,000 euros after being terminated for falsely telling his employer he needed off from work to take his sister to the doctor.

Summary of ADA Restoration Act Senate hearing, from Workplace Horizons, reporting on the Senate hearings on legislation to strip away many pro-business protections from the ADA.

Sports and HR - What the Knicks Teach Us About Manager/Employee Friendships, from The HR Capitalist, drawing advice on how to deal with problem employees from the Isiah Thomas/Stephon Marbury debacle. Sexual Harassment Policy & Practice, from the Pennsylvania Employment Law Blog, following up on my earlier series of posts on best practices for sexual harassment policies and remedial actions.

Blawg Review #135 is worth your time

Blawg Review #135 is online, hosted this week on Transgender Workplace Diversity, a blawg devoted to law, politics, and policy issues for HR, diversity, and legal professionals. It is a conglomeration of an amazing number of posts from the past week on diversity, discrimination, and civil rights issues. Please jump on over and support the tremendous amount of effort Dr. Weiss put into this weeks Blawg Review.

Congress debates legality of English-only rules

In June, I wrote that under the EEOC's regulations, English-only workplace rules are presumptively illegal unless required by business necessity. See English-only workplaces spark lawsuits. The debate over the appropriateness of these regulations has now reached the floors of both houses of Congress. Conservative lawmakers were spurred to action after the EEOC sued the Salvation Army over the termination of two Hispanic employees for speaking Spanish while sorting clothes. In April, Republican Senator Lamar Alexander, with the support of three Democrats, attached an English-in-the-workplace provision to the EEOC budget bill. That bill, which passed the Senate in June, would make it unlawful for the EEOC to bring lawsuits challenging English-only workplace rules. In the House, meanwhile, Hispanic members narrowly won a vote in July to reject a similar provision. Last week, however, the House took a non-binding vote of 218-186 urging House negotiators on the underlying budget bill to accept Alexander's language. Meanwhile, Speaker Nancy Pelosi has promised that Alexander's English-only provision will be killed, and House-Senate negotiations on the underlying bill have been put off indefinitely. Fox News quotes Senator Alexander: "One way to make sure that we have ... a little more unity that is our country's greatest accomplishment is to make certain that we value our common language.... And that we not devalue it by allowing a federal agency to say that it is a violation of federal law for an employer in America to require an employee to speak English on the job."

While Congress and the EEOC hash out these issues, employers should tread lightly if considering implementing an English-only rule. Such policies should only extend as far as necessary to reach the articulated business reason, and employment counsel should be consulted to evaluate whether the policy is not discriminatory as written or as applied.

Failure to take advantage of remedial meaures dooms employee's sexual harassment claim

In what has become an unintentional series on employers' responsibilities related to workplace harassment, today's installment will examine a company that properly promulgated an effective harassment policy, meaningfully responded to a complaint upon receipt, and in the process saved itself from liability for some fairly offensive conduct by a supervisor. Brenneman v. Famous Dave's of America provides a solid example of what to do, in contrast to last week's two examples of what not to do.

Christine Brenneman sued Famous Dave's for sexual harassment. She claimed that her immediate supervisor, David Ryburn, subjected her to a hostile work environment through the following actions: daily winks and blowing kisses; at least three slaps on her buttocks; at least twice daily pulling on the badge attached to his belt; when she was having difficulty putting a letter into an envelope, telling her to "pretend it was a condom and slip it on real soft"; and when she asked him to "stab" a receipt, responding, "I'd love to stab you." There was no issue as to whether those incidents created a hostile work environment, but whether (1) Famous Dave's exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) whether Brenneman failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise to avoid harm. Because Brenneman unreasonable quit her employment and did not suffer a tangible employment action, proof of both elements would permit Famous Dave's to escape liability for the harassment by its supervisor, for which it would otherwise have been vicariously liable.

So let's look at Famous Dave's policies and how it responded to Brenneman's complaint:

1. Anti-harassment policy. Famous Dave's had a facially valid anti-harassment policy, with a non-retaliation provision, and a flexible reporting procedure, listing four different people an employee could contact in case of harassment. Famous Dave's also maintained a 1-800 employee hotline that employees could use to report harassment. It distributed the policy to all employees, including Brenneman, and specifically trained about the policy and how to use it.
2. Prompt corrective action. When Brenneman reported the harassment via the 1-800 hotline, Famous Dave's immediately sent an HR representative to investigate and stop the harassment. It attempted to work out a new schedule with Brenneman to keep her away from Ryburn. It also offered to transfer her to a different store 5 miles away. Brenneman did not accept any of the remedial measures, and instead quit.

Famous Dave's did most things right in responding to Brenneman's complaint. Unlike the employer in EEOC v. V & J Foods, Famous Dave's had a meaningful anti-harassment policy. It was widely disseminated, the employees received training about the policy, and they were given multiple avenues to complain, including a simple 1-800 hotline to call. Unlike the employer in Engel v. Rapid City School District, Famous Dave's acted promptly and tried to implement what it thought was reasonable, meaningful corrective action to end the harassment.

I question whether offering to transfer the complainant is the best practice, although a complainant does not have a legal right to the remedial action of her choice, so long as the action remedies the harassment and the complainant does not suffer any adverse consequences for complaining. For example, there could be a difference between a transfer to a store 5 miles away as compared to 50 miles away. The corrective action must be corrective, not retaliatory.

It is also unclear from the opinion if this the was first complaint levied against Ryburn, and what consequences he suffered for his misconduct. Assuming this was his first instance, I would like to see him undergo some harassment re-training (either one-on-one, or as part of an organizational training session), and be clearly warned that any further infractions will result in his termination. If he was a serial offender, or had other performance problems, termination may be the preferred avenue.

Let me add that harassment training is an on-going obligation. It does not end after an employee receives the handbook or anti-harassment policy. It should be discussed with all employees during orientation, and organizational training should take place at least once every two years, or sooner if a problem arises.

Can employers base employment decisions on employees' personal internet activities?

Courtesy of The Washington Post comes this gem:

Kevin Colvin, an intern at the Anglo Irish Bank of North America ... e-mailed his manager on the afternoon of Oct. 31 claiming "something came up at home" in New York and that he needed to miss work the next day. For whatever reason, perhaps managerial intuition, his boss decided to inspect Colvin's Facebook page on Nov. 1 and apparently found pictures of the intern dressed as a fairy, beer in hand, at a Halloween party in Massachusetts.

Rather than reprimand him, the manager decided to have a little fun. He shot Colvin an e-mail back stating: "Thanks for letting us know -- hope everything is ok in New York. (cool wand)" with the fairy picture attached. And if that weren't embarrassing enough, the manager reportedly BCCed the rest of the company. Those images are now being forwarded to offices around the world for cubicle dwellers to enjoy.

(The article has a link to the offending picture, for those who are curious).

The internet now provides a plethora of social outlets -- blogs, social networking sites such as MySpace, Facebook, and Twitter, video repositories such as YouTube and Break, and even an entire alternate universe, Second Life. Once someone puts something out on the internet, it becomes fair game for anyone and everyone to see, employers included. The WP article cites a vault.com survey in which 82 percent of employers responded that negative information from an online profile would affect their decision to hire an applicant. Presumably a similar but likely small number would also consider negative online information in a decision to continue the employment of a current employee. It is hard to imagine that an employer is somehow invading an employee's privacy by viewing something that is publicly available on the web. If an employee is at-will, and standards are otherwise neutrally applied, there should not be anything unlawful about making a hiring or employment decision based on an employee's personal internet presence, especially if you catch the employee in a lie, such as was the case with Kevin Colvin.

What else I'm reading this week #5

Another week, another batch of excellent employment law and HR-related posts from the blogosphere.

30 Interview Questions You Can't Ask and 30 Sneaky, Legal Alternatives to Get the Same Info, from HR World, answering the question of what can and cannot be asked of applicants during job interviews and how to still obtain relevant, job-related information without discriminating. As an aside, I don't find the alternatives "tricky." There's nothing underhanded about asking an interviewee what days he or she is available for work instead of asking about religion, or asking whether an employee is available to work on short notice or overtime (if it is required) instead of whether he or she has small children at home. It's simply good practice to determine as much as you can about an applicant's fit for a position while staying within the parameters of what is an is not legal to ask.

Employee Resigns - Walk Them Out the Door Or Let Them Work a Notice?, from The HR Capitalist, on the issue of whether or not to accept a two-week notice from a resigning employee.

New Child Care Option: Bring Baby to Work?, from the ABA Journal, on employers who allow employees to bring their children with them to work.

"Supreme Court To Decide Age Discrimination Case!" - Is This Important to Employers in Connecticut?, from the Connecticut Employment Law Blog, citing yours truly and remarking that the Supreme Court's decision in Federal Express v. Holowecki will most likely have little practice effect because of the idiosyncrasies of EEOC practice under the ADEA. While we're discussing Federal Express v. Holowecki, I should mention that in Ohio this case means even less. Ohio's employment discrimination statute provides for a private right of action with no requirement of first filing a discrimination charge with any agency, state or federal. Employees in Ohio can go to court on any discrimination claim without ever having even thought about the civil rights commission or the EEOC. The only caveat is that age claims filed in this way have a 6 month statute of limitations, while all other types of discrimination have a 6 year statute.

Do You Feel Dirty When You Google Candidates?, also from The HR Capitalist, advising why employers should be "Googling" job candidates. Let me add that as long as companies are Googling all applicants, and not singling out those of certain protected classes, there is nothing inherently unlawful about this practice.

Work/Life Balance, the NFL and Bereavement Leave, also from The HR Capitalist, commenting on he Minnesota Vikings docking wide receiver Troy Williamson one game check for missing a game against to attend the funeral of his grandmother.

Tracking employees who are slackers, from Sequence Inc. FRAUDfiles, feigning surprise that employees abuse paid leave policies.

Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding Employer's Right to Inspect Laptop Contents under Email Policy : Electronic Discovery Law, from Electronic Discovery Law, reporting on Sims v. Lakeside School, a federal employment discrimination case out of Washington State, which held that an employee has no reasonable expectation of privacy in the contents of an employer-furnished laptop, including emails sent and received on an employer email account, but preserving the privilege of emails sent to his lawyer and spouse.

Age discrimination lawsuits and plaintiffs' victories continue to rise

When I started this blog six months ago, one of the first posts was on the proliferation of large jury verdicts in age discrimination cases. (See Age discrimination lawsuits continue to rise)

The front page of today's Cleveland Plain Dealer picks up this theme that more age discrimination cases are going to trial, and more are ending in big verdicts for employees. The article cites last year's $16 million dollar verdict obtained by Tommy Morgan against New York Life, in addition to other multi-million dollar verdicts handed down local courts in other age discrimination cases. A former colleague of mine, Marty Wymer, correctly points out, "Everyone on the jury is either over 40 or a close family member is over 40," and that plaintiffs benefit from these jury demographics. Tommy Morgan highlights the theme that plaintiffs use to drive many of these case to big verdicts: "They were making room for younger people."

The lessons for employers to take from these large verdicts haven't changed since I first wrote on this issue:

1. Well documented, legitimate, reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Indeed, under Ohio law, the stakes in these cases are higher than ever, as unlike its federal counterparts, Ohio's employment discrimination statute contains no caps on damages.
2. Judges and juries continue to punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive.
3. All legal issues aside, the golden rule is the best risk management practice -- employers should treat employees as they would want to be treated if in their shoes. Juries are comprised of many more employees than employers, and if those jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to punish the employer, and the dollars needed to resolve the case will be much lower, if needed at all.

Mmmmmmmm, arbitration clauses

Arbitration clauses and their enforceability is not the most scintillating topic in the annals of employment law. So, I took some (but not much) notice of today’s 6th Circuit decision in Seawright v. American General Financial Services, in which the Court upheld an arbitration clause contained in an employment policy over the employee’s objection that she had never assented to be bound by its terms as she never signed any acknowledgment of the policy. The majority found that Seawright’s mere continued employment after receiving the policy constituted valid assent. Because she continued working and never objected to the arbitration clause, she was bound by it.

The dissent, clearly troubled by the notion using the failure to express a lack of assent as evidence of assent, illustrates its point by quoting one of the great thinkers of the late twentieth and early twenty-first centuries, Homer Simpson:

Homer Simpson talking to God: “Here’s the deal: you freeze everything as it is, and I won’t ask for anything more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done.” The Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).

Who says cartoons rot your brain?

Remedial action must be meaningful to save employer from harassment liability

Yesterday I wrote about how to implement an effective complaint procedure to help ward off harassment claims (A Whopper of a Sex Harassment Claim). Today, Engel v. Rapid City School District will illustrate the dos and don'ts of responding to a harassment complaint after it is received.

The facts of Engel v. Rapid City School District are fairly simple. In March 2003, a school district employee complained that David Herrera, a non-supervisory co-worker, had been sexually harassing her. In response, the school district immediately suspended Herrera without pay and launched an investigation led by the school superintendent. As part of the investigation, Engel was asked if she had been harassed by Herrera, to which she answered affirmatively and provided a written complaint describing the harassment.

Upon completion of the investigation, the school district concluded that Herrera had engaged in the following harassing conduct: (1) twice requesting that a female employee look at pornographic images of male and female sex on his computer; (2) rubbing or massaging the neck of female co-workers without their prior permission; (3) stroking the hair of co-workers without their permission; (4) remarking about the physical anatomy of female co-workers and asking to feel a co-worker's butt; (5) attempting to look down the shirts of female co-workers; (6) persistently inquiring about whether or not a female co-worker was wearing thong underwear, and if so what color and did it match her bra; (7) leering at females co-workers; (8) remarking to a female co-worker that she smelled good and that he needed to find some lotion and go into the bathroom; (9) commenting about oral sex and sexual positions which could be used between a female co-worker and her husband; and (10) attempting to reach in a woman's shirt to grab her identification badge.

Given the egregiousness of Herrera's misconduct, the school district would have been justified in terminating him at that time. Instead, it opted for a less severe penalty, a written final warning, which provided: "Any future complaints of harassment by you will result in your immediate termination of employment.... If there are any additional instances of inappropriate conduct, whether it be touching, verbal or otherwise, your employment will be terminated.... Continued conduct of the type mentioned above will not be tolerated any further. As stated above, if there is an additional complaint, your employment with the District will be terminated."

Herrera, however, was undeterred. After returning to work he tried to talk to Engel in the hallway, used the school intercom to speak to her, and, according to Engel, undressed her with his eyes. She again complained, but instead of terminating Herrera, the school district merely re-suspended him. At the same time, it also softened its stance on the consequences of any future acts of harassment: "Any future complaints of conduct of harassment or violation of the aforementioned terms and conditions will result in additional administrative action, up to and including the termination of your employment." When Herrera continued to leer at Engel following his return from the second suspension, she resigned and sued the school district for sexual harassment.

Because Herrera was merely a co-worker and not a supervisor, the school district can only be liable for the harassment if it knew or should have known of the harassment and failed to take immediate and proper corrective action. The remedial action must be reasonably calculated to stop the harassment.

The appellate court found that the school district could not be liable for any of Herrera's actions that occurred before it received the initial March 2003 complaint. It had a written anti-harassment policy and formal complaint procedure, and received no complaints about Herrera before March 2003. Moreover, the court found that the school district's response following its receipt of the first complaint was prompt, comprehensive in its scope, and stern in its warnings. In the court's words: "[T]he law does not require an employer to fire a sexual harasser in the first instance to demonstrate an adequate remedial response." Had it chosen to do so, however, I highly doubt that Herrera would have had any claim, and the school district would have been insulated from claims by other employees.

The Court was less complementary of the school district's handling of the continuing complaints after Herrera returned from suspension: "That an employer responds adequately to an initial report of sexual harassment ... does not discharge the employer's responsibility to respond properly to subsequent reports of offending conduct by the harasser." In the Court's view, it was not only significant that Herrera continued to harass Engel, but that the school district's response to the subsequent harassment lessened in severity:

Significantly in our view, RCSD's decision to respond to Herrera's continued harassment by decreasing, rather than increasing, its threatened sanctions may reasonably be viewed as contributing to a negligent response. The reasonableness of an employer's response to repeated sexual harassment may well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before will be effective.... Here, RCSD had threatened to terminate Herrera if any additional substantiated complaints of harassment were made against him, but ... RCSD did not follow through on this promise. Instead, RCSD responded to Engel's additional complaints by suspending him and then advising that further inappropriate conduct could lead to administrative action, "up to and including the termination of [his] employment" – thus opening the possibility that even a third round of harassment would not cost Herrera his job. Engel reasonably contends that this backtracking may have emboldened Herrera, and thereby contributed to his continued harassment of her.... In sum, Engel has presented evidence that could support a reasonable finding that some elements of RCSD's second remedial action were insufficient to address Herrera's ongoing harassment, that the remedial action did not stop the harassment, and that the second remedial action may actually have encouraged Herrera to feel that he could safely continue certain activities.

An employer does not discharge its duty to remedy harassment merely by taking some corrective measures. Instead, the corrective measures must be reasonably designed to prevent future harassment. To attempt to minimize liability for co-worker sexual harassment, businesses should be aware of the following factors upon receipt of a harassment complaint:

1. Promptness. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct.
2. Thoroughness. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. Egregious allegations such as those in the Engel case, however, usually require a more comprehensive investigation.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communication. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow-through is crucial. Rapid City School District's fatal flaw was that it did not carry out its threat to terminate Herrera's employment if the harassment did not stop. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through on that threat, or face the risk of being second guessed like the employer in Engel.

Hindsight is 20/20 and investigations are always subject to being second guessed. Promptness, consistency, thoroughness, and follow-through are a business's best friend in responding to harassment complaints. A failure of any one could expose a company to liability for failing to take appropriate remedial action. Complacency is also dangerous. As the Engel case illustrates, one cannot assume that remedial measures are working, and if there is reason to believe they are not (such as a second complaint), more severe measures must be taken.

A Whopper of a Sex Harassment Claim

One of the surest ways for a company to guard against harassment lawsuits is to have in place a reasonable mechanism by which a victim of harassment can complain to the company. In today's workplace, one would be hard pressed to find a company that does not have a harassment policy, either in its employee handbook or otherwise. It is not enough, however, merely to have complaint procedures in place. Those procedures much be understandable, workable, and meaningful for them to provide any protection to an employer. EEOC v. V & J Foods, out of the 7th Circuit, illustrates the important distinction between a complaint procedure that is or is not meaningful, and the consequences that can befall an employer with an unworkable system.

Samekiea Merriweather, 16 years old, worked after school and on weekends at a Burger King restaurant. It was her first paying job. Unfortunately for her, her boss and the store's general manager, Tony Wilkins, had a propensity of sleeping with his female employees. He rubbed up against her, tried to kiss her, told her he wanted a "young girl" because of "their body. You know, it's not all used up." He offered $600 to have sex with him in a hotel room," and when she refused and told him she had a boyfriend, he told her he wasn't going to do anything else for her because she was giving her body away for free instead of selling it to him. Samekiea, both on her own and through her mother, repeatedly complained of the harassment to her shift supervisors and the assistant manager, who essentially ignored her. Shortly after Samekiea turned down Wilkins's offer to pay her for sex, he became hostile towards her and fired her.
Instead of summarizing the Court, I'll merely quote from the well written opinion of Judge Posner:

[A]n employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate....
The mechanism must be reasonable and what is reasonable depends on “the employment circumstances,” ... and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet....
An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager....
Ignoring this point, the company adopted complaint procedures likely to confuse even adult employees. The employee handbook that new employees are given has a brief section on harassment and states that complaints should be lodged with the “district manager.” Who this functionary is and how to communicate with him is not explained. The list of corporate officers and managers at the beginning of the handbook does not list a “district manager,” or for that matter a “general manager,” but instead a “restaurant manager”; and there is evidence that employees confuse “district manager” with “restaurant [or general] manager” — that is, Wilkins, the harasser. There is a phone number on the cover of the handbook, and if you call it you get a receptionist or a recorded message at V & J’s headquarters. But an employee would not know whom to ask for at headquarters because she is not told who her district manager is or the district of the restaurant at which she works.
If an employee complains to a shift supervisor or assistant manager, that person is supposed to forward the complaint to the general manager (and thus in this case to Wilkins) even if the complaint is about the general manager. After receiving the complaint the general manager is supposed to “turn himself in,” which of course Wilkins did not do. Nor did the shift supervisors or assistant manager report Merriweather’s complaints to Wilkins or to anyone else. A policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law….
An unreasonably costly complaint mechanism would not be reasonable. But it would cost very little, certainly for a company of V & J’s size, to create a clear path for complaints of harassment and other forms of illegal discrimination.... All that it would have to do, we should think, would be to post in the employees’ room (thus not visible to the restaurant’s customers) a brief notice that an employee who has a complaint about sexual harassment or other misconduct can call a toll-free number specified in the notice. The number would ring in the office of a human relations employee and the receptionist would identify the office as that of the company’s human relations department....

Because of the ineffective complaint procedure, Merriweather’s lawsuit was reinstated.
There are several lessons to be learned in the drafting and enforcement of an effective harassment complaint procedure:

1. Comprehension. It must relate to and be understandable by the employees who are going to rely upon it. It cannot be written in legalese or jargon. If your workforce is multi-lingual, so should the harassment policy.
2. Confidentiality. It must not only explain to whom complaints can be made, but how to confidentially contact those people.
3. Options. It must provide optional avenues for complaints that guard against an employee being faced with the Hobson's Choice of staying silent or complaining to the harasser. In Judge Posner's cautionary words: "A policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law."
4. Policing. It should mandate that supervisors or managers report to senior management and/or human resources any complaints they receive or any conduct they perceive that may be a violation of the harassment policy.
5. Publication. It must be disseminated to the employees, should be conspicuously posted in the workplace, and the workforce should receive periodic training on the policy and complaint procedures.

What else I'm reading this week #4

Wal-Mart - So Flexible They Provide a 1-800 Number to Call In Sick...., from The HR Capitalist, writing about the implications of Wal-Mart's call-in policy for sick workers.

One of the Better Headlines: Shirking Working: The War on Hooky, from Jottings By An Employer's Lawyer, discussing the on-going problem of employee hooky.

Watch for Legal Traps When You Leave a Firm to Work for a Rival, from CareerJournal.com, analyzing the practical implications of employees jumping ship to work for a competitor.

Staples Settles Overtime Claims for $38 Million, from the Manpower Employment Blawg, reporting on yet another astronomical wage and hour settlement.

Report: Female Employee Uses "Barenaked Ladies" to Harass Male Supervisor, from the Connecticut Employment Law Blog, under the rubric, "I can't make this stuff up," commenting how song lyrics by the Barenaked Ladies were used to sexually harass a co-worker.