Best of -- 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.

Best of -- Sixth Circuit confirms that it will not second-guess an employer's honest belief

The following two Sixth Circuit decisions make it clear that pretext for discrimination or retaliation does not exist if the employer engages in a reasonable investigation and has an honest and good faith belief in the rationale for its employment decision. These cases are a good reminder that one of the best defenses to any discrimination, retaliation, or harassment claim is a thorough, well-documented investigation.

Michael v. Caterpillar Fin. Servs. Corp. concerned a six-year African-American employee who had a good employment record until her manager was replaced. Shonta Michael claimed that the discipline, including a very confrontational meeting in which the new manager aggressively yelled at her, was racially discriminatory and that she was retaliated against after she complained over the manager's treatment of her. Caterpillar, on the other hand, claimed that any conflict and discipline was solely because of legitimate performance issues.

The Court skirted the issue of whether the disciplinary action (a performance plan) constituted an "adverse employment action," finding that regardless Michael could not prove that the employer's actions were pretext for discrimination or retaliation. Caterpillar's investigation included interviews of all of Michael's co-workers, many of whom found her difficult to work with. Michael claimed that her disagreement those facts established pretext. The Court disagreed:

Michael's disagreement with the facts uncovered in Caterpillar's investigation does not create a genuine issue of material fact that would defeat summary judgment "as long as an employer has an honest belief in its proffered nondiscriminatory reason." The key inquiry in assessing whether an employer holds such an honest belief is "whether the employer made a reasonably informed and considered decision before taking" the complained-of action. An employer has an honest belief in its rationale when it "reasonably relied on the particularized facts that were before it at the time the decision was made." "[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned." ... Caterpillar presented sound, nondiscriminatory reasons for the action that it took based on a reasonable investigation of events that occurred after Michael’s favorable performance review.

Because Caterpillar had extensive documentation of its investigation, it could reasonably rely on its conclusions with no finding of pretext or retaliatory animus.

By comparison, in Denhof v. City of Grand Rapids, the issue was whether the Grand Rapids Chief of Police reasonably relied upon a psychological fitness for duty exam in refusing to permit the plaintiff to return to work. The Court found that the Chief's reliance on the medical opinion was unreasonable because the doctor's written opinion showed that he had a preordained opinion on Denhof's unfitness for duty:

In his January 11, 2002, letter recommending a fitness for duty examination for Patricia Denhof, Dr. Peterson employed language that, at a minimum, suggested his opinion had already been formed. For instance, he noted that in view of the tension between Denhof and the department, "it is difficult to imagine how she could continue to work in this environment." ... This language should have signaled to Chief Dolan, and indeed any reasonable recipient, that Dr. Peterson was predisposed to finding Denhof unfit for duty. Indeed, after comments like this, it is hard to see any possibility that Dr. Peterson's examination would yield a result other than finding that Denhof should be separated from the police force. Instead, when Dolan was confronted with a psychologist who had already formed his opinion before examining the patient, he asked that doctor to proceed with the examination. In doing so, he forfeited the protection of the honest belief rule, because the jury could have easily concluded that his reliance on a doctor who had already made up his mind did not qualify as reasonable reliance.

According to the Court, the employer could not have an honest belief about Denhof's lack of fitness to return to work because, according to the opinion the doctor upon whom it was relying was predisposed. Thus, the decision could not have been bona fide. I'm troubled by the ease with which the Denhof panel writes off the employer's reliance on a medical opinion and delves into the motivations of the psychologist. The doctor's language does not seem nearly as clear to the me as it did to the Sixth Circuit. Moreover, if an employer cannot have an honest belief about a medical opinion what can it hold an honest belief about? Nevertheless, these two cases reaffirm the honest belief rule, and demonstrate that courts will not second-guess a personnel decision if it is based on a rational, reasoned, honest belief.

The softer side of employment law

Ellis v. United Parcel Service, decided this week by the 7th Circuit, is legally interesting in its dealing with the issues of interracial dating, race discrimination, and the ultimate lawfulness of UPS's termination of a manager for violating its nonfraternization policy. What's more interesting to me, though, is the Court's cautionary words on the issue of whether a nonfraternization policy makes good business sense:

In closing, we emphasize that our decision today should not be construed as an endorsement of the UPS nonfraternization policy. When a company like UPS runs expensive ads that ask "What can Brown do for you?" it might be wise for it to ask if this policy is really worth all of the fuss this case has created. As we observed in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353 (7th Cir. 1995):

As the work force grows and people spend more of their time at work, the workplace inevitably becomes fertile ground for the dating and mating game. It is certainly not unusual, and it may even be desirable, for love to bloom in the workplace. Contiguity can lead to sexual interest, which can lead to soft music, candlelight dinners, serious romance, and marriage, or any stops along the way.

By all accounts, Ellis was a good employee. He started with UPS as a driver right out of high school in 1979 and worked his way up to a managerial position. After 21 years with the company he met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That's a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn't seem quite right about that.

When implementing employment policies, there are legal considerations and human considerations. I too often write about the perils employers face when ignoring the former. The Ellis case is a good reminder that employers face different dangers, such a poor retention and lackluster morale, when they ignore the latter.

Lawsuit illustrates potential problems with employee testing

Today's Jackson (Tennessee) Sun is reporting that Kilgore Flares Co., a Tennessee defense weaponry manufacturer, has been hit with a class action lawsuit related to its neurological testing of hirees:

The class action lawsuit, filed on behalf of Robinette Anderson, states that the company uses a nerve test to determine who it hires. The test is supposed to determine the risk of potential employees' developing carpal tunnel syndrome, according to the suit.

The suit states Anderson was denied a position at the Toone plant after being tested. The suit also states the findings from these tests are "based upon unreliable measures." ...

"The country's leading scientists have concluded the nerve conduction exam has an exceptionally small, and often times wrong, predictive value for determining carpal tunnel syndrome," Anderson's attorney Justin Gilbert said in a press release.

"More fundamentally, we believe this type of 'propensity testing' flings open the door to forced genetic exams for purposes of hiring discrimination," Gilbert said. "We want employers to make judgments based on workers' abilities, not on dubious genetic predictions."

Depending on the results of the nerve testing, job applicants are either rated as having no restrictions as to where they work or as it being inappropriate for them to work in "highly wrist-intensive" jobs, the suit states.

The lawsuit contends Kilgore violates the Americans with Disabilities Act because it requires a person who's hired to fall into the no restriction category, according to the lawsuit.

The ADA allows for medical testing of job applicants as long two conditions are met: 1) a conditional offer of employment has been made before the testing occurs; and 2) the employer requires the same testing for all individuals entering the same job category. There is no requirement that the medical exam be job related. Once an employee is hired, however, an employer may only require medical exams if doing so is job-related and consistent with business necessity.

By all accounts, then, Kilgore's testing appears to be on the level in how it's administered. The lawsuit, however, seems to delve deeper by claiming that even if the testing itself is legitimate, Kilgore used the results to discriminatorily screen out any hiree with a propensity for carpal tunnel syndrome. That use of employee testing may pose problematic for Kilgore, even if the testing itself is legal. The test does not seek to determine which hirees currently have carpal tunnel syndrome and therefore might be job restricted, but which have a propensity to develop it down the road. I also question Kilgore's reasonable accommodation obligations to those hirees with actual carpal tunnel syndrome. It will also be a problem for Kilgore if it proves true that the exam has a small and often times wrong predictive value.

The takeaway for employers from this story is two-fold:

• Employers should make sure that any tests and selection procedures are properly validated for the positions and purposes for which they are used, and can be reasonably relied upon for that purpose.
• Selection criteria should be job-related and consistent with business necessity. If a criteria singles out a specific group, employers should scrutinize the risk of using that criteria versus the benefit derived from it.

What else I'm reading this week #29

Just a quick heads-up for everyone that I will be taking next week off from regular blogging while I'm out of town in depositions. In my absence, and in anticipation of the blog's upcoming birthday, I plan on re-running some of the past year's best posts. New content will resume on May 12.

This week's review starts with a couple of wage and hour highlights. The aptly named Wage & Hour -- Developments & Highlights brings us the story of Fenway Park's food vendors, who have filed a class action for unpaid wages and overtime. Meanwhile, HR World reports that Quest Diagnostics has settled with the Department of Labor for $688,772 in overtime back wages regarding the misclassification of 238 employees as non-exempt.

Alaska Employment Law has an interesting bit about how one judge empirically determines a witness's credibility.

The Connecticut Employment Law Blog has more information on the Genetic Information Non-Discrimination Act.

Finally, BLR's HR Daily Advisor discusses religious accommodations for tattoos and piercings.

Genetic Information Nondiscrimination Act clears Congress

In news that surprises no one but is nonetheless significant, the House has passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1. It passed the Senate last week by a 95-0 margin. President Bush is expected to sign GINA into law shortly. Among other provisions related to health insurance coverage, the bill will make it illegal for employers to use genetic information in hiring, firing, or promotion decisions.

For information on GINA, take a look at today's AP wire story as reported by the New York Times. The full text of the bill, as passed by the House, is also available.

I'll have more on GINA's potential impact if and when President Bush signs it.

Further reflections on Reeves v. C.H. Robinson Worldwide

I've been thinking a lot about the Reeves case, because something about it just hasn't been sitting right with me. I think I've finally put my finger on it. When a female employee or women in general are not the target of the offensive conduct, finding that the harassment is "based on" sex because women are more likely to be offended by the conduct then men confuses the intent of the alleged harasser with whether the plaintiff welcomed the conduct.
To establish a prima facie case of sexual harassment, an employee must prove, among other factors, that the sexual harassment was unwelcome and that the harassment was based on sex. By injecting a gender's perceived sensitivities into the equation, the court makes the intent of the conduct irrelevant. In doing so, the Reeves court has essentially created a general code of workplace civility. As explained in Yukins v. First Student, Inc., another case in which a female employee claimed sexual harassment based on conduct that offended her but was not targeted at her:

More important still, the cat-rape anecdote and the "fat ass" comment are examples of comments that while they may, depending on their context, offend in respects relevant to Title VII, have only a tangential intersection with the plaintiff. When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker is believed ... to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the work-place or emailed to the plaintiff. ... The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. ...
The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.

Everyone celebrate RSS Awareness Day

Today is May 1, which only means one thing -- it's RSS Awareness Day. For those of you who already subscribe to my feed, feel free to ignore this news. For those who don't, and either found me via a search engine, or maybe you just have me bookmarked and simply visit the site everyday, please click over to rssday.org and read about how subscribing to a blog's feed will greatly simplify your life. Then, please consider subscribing to the Ohio Employer's Law Blog to receive automatic updates of all of your employment law news.

Is exposure to generalized offensive comments enought to create a hostile environment?

Yesterday, we examined Reeves v. C.H. Robinson Worldwide in discussing whether an employer has an obligation to ban the use of radios in the workplace to prevent harassment. Today, we'll look at the other interesting aspect of the case, whether conduct that is offensive to women, but not targeted at them, constitutes sexual harassment.

Reeves alleged that the following sexually offensive language permeated the work environment each and every day for nearly 3 years. Notably, Reeves did not allege that any of the offending conduct was directed at her specifically. Instead, it appears that she was subjected to the same crude language as her male co-workers.

For example, one of Reeves's co-workers frequently used sexually crude language that offended her, including:

• Often using the phrase "f**ing bitch" or "f***ing whore" after hanging up the phone.
• Once calling the only other female employee in the office a "bitch" after she had left the room, and he once remarked that she had "a big ass."
• Telling frequent sexual jokes, including one for which the punch-line was "f**k your sister and your mother is a whore."
• Once calling another female a "c**t."

A different co-worker also offended Reeves with the use of sexually crude language. Reeves overheard that employee talk about:

• "Getting off" in reference to masturbation.
• A song that referenced "women’s teeth on a man's d**k."
• An experience in a hotel with naked women.

The branch manager, who was Reeves’s direct supervisor, also made comments that offended Reeves.

• He once referred to a former female co-worker as a "lazy, good-for-nothing bitch."
• Another time he asked Reeves to "talk to that stupid bitch on line four," referring to a female customer.
• He once said, referring to the only female employee other than Reeves, "[s]he may be a bitch, but she can read."
• On another occasion he said of the same employee, "[s]he's got a big one," referring to her buttocks.

In hostile work environment cases, the conduct is actionable if it "because of" sex or "based on" sex. To satisfy the "based on" element, a plaintiff must essentially show "that similarly situated persons not of [her] sex were treated differently and better." According to the Court:

The specific question that faces us here is whether harassment in the form of offensive language can be "based on" the plaintiff's membership in a protected group even when the plaintiff was not the target of the language and other employees were equally exposed to the language.

The Court concluded that Reeves could pursue her sexual harassment claim because the alleged conduct was "based on" sex:

The language in the CHRW office included the "sex specific" words "bitch," "whore," and "c**t" that ... may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature.

Thus, the Court was not persuaded that Reeves's equal exposure to the offensive conduct mitigated against a finding of a hostile environment. It concluded that the conduct was "based on" sex because the sex specific words "may be more degrading to women than men."

This holding may take sexual harassment law in a new direction. Indeed, in the 6th Circuit (which includes Ohio), "based on sex" has an entirely different meaning. According to Williams v. GMC:

[H]arassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women satisfies the "based on sex" requirement. ... The conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive ... constitute a hostile environment in violation of Title VII. The myriad instances in which Williams was ostracized, when others were not, combined with the gender-specific epithets used, such as "slut" and "f***ing women," create an inference, sufficient to survive summary judgment, that her gender was the motivating impulse for her co-workers' behavior.

The key difference between Reeves and Williams is that in Williams, the plaintiff claimed that she was specifically ostracized on account of her gender, and used the use of gender-specific epithets in the workplace as evidence of the sex-based animus. In Reeves, there was no claim of ostracism, and the only evidence of unlawful conduct was the epithets to which all employees, male and female, were exposed.

Reeves also bases its decision on a degree of sexual relativism. In other words, even though the conduct was not directed at Reeves, or even women in general, it was nevertheless "based on" sex because women, as the gentler gender, would be more prone to be offended by such conduct. Such a rule will require employers to act as morality police to protect the fairer sex from any exposure to words that might offend their delicate nature. I have no doubt that the woman noted in the Reeves decision who was directly called a "c**t" has a viable sexual harassment claim. I have grave concerns, though, whether Ms. Reeves should enjoy the same right.

Harassment by radio station

Reeves v. C.H. Robinson Worldwide, decided yesterday by the 11th Circuit, asked the following question:

Whether daily exposure to language and radio programming that are particularly offensive to women but not targeted at the plaintiff are sufficient to satisfy the "based on" and "severe or pervasive" elements of a hostile work environment claim.

The plaintiff was the only woman who worked in her area. On a daily basis, her male co-workers used a barrage of the foulest and most sexist language one could conjure. They also listened to a morning radio show

that was played every morning on the stereo in the office. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a "sexual tyrannosaurus rex." When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

Despite both men and women being equally exposed to the same language, the court found that the language and the radio program were more degrading to women than to men. Thus, the environment was hostile to Reeves "based on" her sex. The court reversed summary judgment granted for the employer and remanded the case for trial.

The knee jerk reaction to this opinion would be a blanket ban on the playing of any radios in the workplace lest a female employee be offended by something she hears. From someone who can't do a lick of work without music playing in the background, let me assure you that such a reaction would be going overboard. The employer in this case failed not because it allowed radios to play in the workplace, but because it failed to police what was on those radios. Active policing of what employees listen to on the job is not necessary. Rather, companies should police these matters as they would any other alleged offensive conduct in the workplace -- a full and complete investigation after an employee complains or after the employer otherwise becomes aware that something offensive or inappropriate is taking place.

I'll be back tomorrow on whether language that is equally broadcast to men and women in the workplace should provide a basis for sexual harassment liability. [Hat tip: Workplace Prof Blog]

What are an employer's responsibilities to an employee taking FMLA intermittent leave?

Intermittent leave continues to be the thorn in employers' sides in administering the FMLA. One key burden that intermittent leave puts on employers is covering an employee's work who is performing at less than a full schedule.

Lewis v. School Dist. #70, recently decided by the 7th Circuit, suggests it would be unlawful under the FMLA for an employer to consider an employee's use of intermittent leave when evaluating the employee's performance. Lewis took intermittent leave to care for her housebound chronically ill mother. The School District fired her during her period of intermittent leave because she had not completed all of her assigned responsibilities. The court believed that a jury could conclude that the District terminated her in retaliation for taking intermittent leave under the FMLA:

The most prominent direct evidence proffered by Ms. Lewis is Dr. Hawkins' letter informing her of the District's decision to replace her as bookkeeper. The letter offered only one justification for the District’s action: "It was determined that you miss too much work to meet the essential functions of your present assignment." ...

The actions of the school board and the superintendent during Ms. Lewis' period of FMLA leave also raise serious questions about their reason for discharging her. There is evidence that, although the District was aware that certain bookkeeper functions were not being completed adequately while Ms. Lewis was taking intermittent FMLA leave, it made no effort to take adequate steps to assuage the impact of her intermittent leave on the District's operations. A reasonable jury could conclude that the District, instead of taking such steps, expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis. Arguably, when her periods of intermittent leave prevented her from timely completing all of the duties she had performed as a full time bookkeeper, she was removed from her position. Viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. ...

It could have shifted some of the bookkeeper's job duties to other employees during the time that Ms. Lewis was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It also could have transferred Ms. Lewis to another position (such as a teacher's assistant position) temporarily if she was unable to fulfill the essential functions of her job while taking intermittent FMLA leave. ... The District declined to exercise any of these options. In short, we believe that a jury would be entitled to conclude that the school board and the superintendent held Ms. Lewis to the unrealistic expectation that she should accomplish satisfactorily all of the duties of the bookkeeper position during her period of FMLA-protected intermittent leave.

This opinion goes beyond what the FMLA actually requires to accommodate an employee who is taking intermittent leave. Section 825.302 of the FMLA's regulations clarifies that despite an employee's right to take intermittent leave, such leave should not "unduly disrupt the employer's operations." Moreover, Section 825.204 of those same regulations makes it clear that an employer does not have to consider alternate work arrangements to accommodate an employee taking intermittent leave. Instead, employers have the discretion to "require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position." The only right the employee has in this instance is to "be placed in the same or equivalent job as the job he/she left when the leave commenced" when the intermittent leave is over or has been exhausted.

The court suggests that the School District may be liable for FMLA retaliation because it failed to consider any alternate work arrangements. The regulations make clear, however, that such arrangements are at the employer's discretion and not an absolute right that an employee enjoys.

What else I'm reading this week #28

Allow me to start this week with some self-promotion. To the immediate right of this post is a sidebar entitled Subscribe. It uses technology called RSS (which is short for Really Simply Syndication). RSS will deliver daily updates of this blog directly to your PC, either in a feed reader (such as Google Reader, which I use and recommend), or to your email (no spam or unsolicted email, I promise). To fully understand RSS and how it will greatly simplify your web surfing and information gathering experience, please check out Dan Schwartz's excellent post on this topic at the Connecticut Employment Law Blog. If you want to receive daily updates on what is going on in the world of employment law in Ohio and elsewhere, please consider clicking the orange box to the right or entering your email.

Dan also earns the honor for the post of the week - Court Flushes Away Disability Claim; Finds that Toilet-Training Book for Kids Not Enough to Create Hostile Work Environment, which discusses a Connecticut case in which an employee with some unpleasant gastrointestinal issues claimed that he was harassed on account of his disability by his co-workers leaving a book called "The Book of Poop" on his desk.

The Wall Street Journal's Law Blog asks: are Blackberrys the next battleground in wage-and-hour litigation? Be very afraid that plaintiffs' law firms are posting on their websites, "Have you been assigned a BlackBerry or a phone? If so, give us a call." For more on this topic, take a look at this analysis by Jeffrey M. Schlossberg and Kimberly B. Malerba. I've also touched on this topic before, in Can't get away from the office.

Andrew Scott-Howman's most excellent Life at Work blog, which I've recently discovered, has a post on a topic that is near and dear to my heart, discrimination against bald people.

Kris Dunn, The HR Capitalist, writes on the HR nightmare presented by employees who carry weapons in their cars.

From the ABA Journal comes a story about Whirlpool's suspension of 39 employees for smoking. Whirlpool, which charges its smokers $500 more in health insurance premiums, claims that the employees lied on their insurance forms by claiming that they had stopped smoking.

Finally, Nolo's Employment Law Blog gives a good update on the current state of religion in the workplace.

Court vindicates employer who turned a blind eye to a request for a reasonable accommodation

Buboltz v. Residential Advantages, Inc., decided last week by the 8th Circuit, illustrates the important point that merely because an employee has a disability does not mean that an employer must make a reasonable accommodation. This case also highlights, however, the risks that employers assume when ignoring a potential request.

Buboltz is legally blind. Residential Advantage, Inc. ("RAI") provides residential services to disabled individuals who cannot live independently. It hired Buboltz as a direct service provider ("DSP"), meaning she was responsible for providing services to the residents. Part of a DSP's job is to provide transportation to the residents. As an accommodation for Buboltz's blindness, however, at the time of hire RAI exempted her from that job function. When her supervisor became concerned about some performance issues (such as dispensing a resident's medications 3 hours late, and touching a resident's crotch to determine if he had wet himself), she modified Buboltz's job duties further. Thus, Buboltz was no longer allowed to dispense meds or be alone with patients. It was explained to Buboltz that her job was being modified out of a concern that licensing agencies might take issue with her blindness. In response, Buboltz said, "I have, like, numerous devices that I can use."

Buboltz claimed that her statement was a request for a reasonable accommodation, which RAI failed to subsequently provide. The Court disagreed. It found that Buboltz's statement was not a request for an accommodation, but a statement that she did not need any accommodation. Because Buboltz's statement was not a request for a reasonable accommodation, RAI was not under any obligation to engage in any interactive discussion with her about whether an accommodation was possible.

This case is not as clear cut as the Court makes it out to be. RAI had already accommodated Buboltz when it hired her by waiving the driving requirement. An employer's duty to reasonable accommodate a disabled employee is a continuing one and is not exhausted by merely one effort. A good argument can be made that when RAI concluded Buboltz should not dispense medication or work alone with residents, it should have discussed possible accommodations that could have allowed her to maintain those job responsibilities. By failing to do so, RAI took a calculated risk that ended up paying off.

Despite RAI's success, the take-away for employers from this case is not to ignore employees' requests for reasonable accommodation. If an employee's statement can be construed as a request for help to perform a job because of a disability, the employer has an obligation to engage in the interactive process to determine if there is a reasonable accommodation that can be made. Employers who ignore this obligation do so at their peril.

Ledbetter Fair Pay Act dies in Senate

Paul Secunda at the Workplace Prof Blog and CNN each have the details.

White House comes out against Ledbetter Fair Pay Act

It's been nearly a year since the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., which held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter decision set of a reactionary wave in Congress. Less than 2 months after Ledbetter, the House passed the Lilly Ledbetter Fair Pay Act of 2007, which would amend Title VII, the ADEA, the ADA, and the Rehabilitation Act such that a discriminatory compensation decision occurs each time compensation is paid per that decision. In other words, each receipt of a paycheck would start a new statute of limitations running, regardless of when the actual discriminatory decision was made or implemented.

While the Senate mulls the Lilly Ledbetter Fair Pay Act, the White House has publicly come out against it. From CNN:

The White House said it supports anti-discrimination laws, but that statutes of limitations are crucial in fact-intensive cases. A prompt assertion of discrimination is critical for both employers and employees, the White House said.

"This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims."

I've been on record opposing the Ledbetter Fair Pay Act. It would create a floating statute of limitations for pay discrimination claims, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty. Businesses need to know that they will reach a point in time when decisions cannot be challenged in court. Moreover, the more time that elapses between a decision and a lawsuit, memories fade and evidence becomes stale, making it more difficult for a company to rebut the claim. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision?

School's ban of tag underscores why the workplace bullying movement might catch on

Today's example of society's downward spiral to wussification, which plays right into the hands of the anti-bullying movement, comes from the Washington Post, which reports that a Virginia elementary school has banned tag at recess:

Robyn Hooker, principal of Kent Gardens Elementary School, has told students they may no longer play tag during recess after determining that the game of chasing, dodging and yelling "You're it!" had gotten out of hand. Hooker explained to parents in a letter this month that tag had become a game "of intense aggression." ...

Many schools nationwide have whittled down playground activities in response to concerns about injuries, bullying or litigation. Dodge ball is a thing of the past in many places, and contact sports are often limited at recess. ...

Since the prohibition began early this month, physical education teachers have begun a "chasing, fleeing and dodging" unit in first through fifth grades. Students essentially play variations of tag, and the teachers remind them about safety rules and point out the athletic skills they can transfer to other sports, said Sue Straits, a PE teacher.

Other parents said that slips and falls are part of growing up and that restricting games is not the right solution. Chris Delta, a Kent Gardens mother, said she knows "life's not going to breeze" for her children. She wants them to learn how to cope with difficulty. Her own daughter has been injured on the playground, she said. Once she was pushed off a jungle gym and had the wind knocked out of her, and another time she got a goose egg when a student threw a rock in the air and it landed on her head. "I didn't expect because of these two instances that the equipment would be banned or all the rocks or pebbles or stones would be taken away," Delta said.

Michael Haaren, a father, said that if some children are being too aggressive, they should be disciplined. Limiting the activity is a "draconian" measure, he said. He is concerned that schools are on a bad trajectory. "Where are we headed here? The elimination of recess altogether? It has happened in other schools. Will we eliminate 'duck duck goose' because kids are being touched?" he asked.

Don't think for a second that today's kids who can't handle playground games aren't going to be tomorrow's employees who will run to court every time their boss is mean. [Hat tip: John Phillips' The Word on Employment Law]

Firing of Food Network host illustrates resume fraud

Cleveland restaurateur and Iron Chef Michael Symon is set to take over as the new host of the Food Network's Dinner: Impossible series this fall. Great news for Chef Symon and Cleveland in general, but what does this have to do with employment law? According to the Cleveland Plain Dealer, the Food Network fired the show's prior host for resume fraud:

Symon is stepping in at "Dinner: Impossible" after the St. Petersburg Times revealed in early February that original host Robert Irvine exaggerated a wee bit on his resume. Like that bit about cooking for England's royal family. And being a White House chef, among other things.

Resume fraud is a big problem for employers that largely goes undetected. Some surveys show that perhaps as many as 30-40% of resumes contain intentional inaccuracies, such as lies and exaggeration about education, prior jobs, experience, and qualifications. The issues for businesses are two-fold:

1. How does one guard against hiring a candidate with exaggerated or flat-out false credentials?
2. What does one do upon finding out that an employee lied to get the job?

1. Background checks
The best way to guard against resume fraud is to thoroughly screen all job candidates' credentials. Myriad companies offer services for checking the veracity of job applicants' background information. Do your homework, though, as some companies are much better than others. Also, check with your attorney, because the Fair Credit Reporting Act has certain mandatory notice and consent requirements that could subject you to unnecessary liability if they are not followed.
Reference checks should also be part of any screening process. Ohio business should not fear accurately responding to inquiries from other business about past employees. Ohio has a statute, R.C. 4113.71, that gives employers a qualified immunity to provide job reference information. An employer can give a prospective employer information about an employee's job performance without fear of liability, unless the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose. The statute also has an exception for violations of the employment discrimination laws, so, for example, you can't give good references to white employees and bad references to black employees and safely hide behind 4113.71.
2. Post-hiring detection
What happens, however, if you find out that an employee lied about his or her background after that employee has already started working? Viewing this situation as "no harm, no foul" (i.e, the employee is doing a good job, so I'll overlook the resume fraud) is short-sighted. Unless a company consistently terminates employees who have been found to have lied or embellished their credentials, it likely risks a discrimination claim if and when it chooses to fire an employee within a protected class for resume fraud.
Also, a failure to consistently enforce a policy against resume fraud will limit a business's ability to use an after-acquired evidence defense. Often times, resume fraud is not uncovered until after a terminated employee sues the company and the employee's background is dissected during the discovery process. The after-acquired evidence defense permits an employer to cut-off its liability for back pay to a terminated employee at the point in time it would have fired the employee based on something learned after the employee was terminated. Thus, if it is uncovered during litigation that an employee lied about his or her background, the after-acquired evidence defense allows for the termination of back pay liability as of the date of that discovery. Unless, however, a company has a consistent policy of terminating those who lie on their resumes, it will have an uphill battle convincing a court that it would have terminated this plaintiff upon the discovery.
As with most issues in employment relations, it is best to temper expectations. Employment applications should contain clear disclosures that the employee signs off on, which states the all of the information is true and accurate to the best of the employee's ability, and that false information will disqualify the candidate from employment and subject the employee to termination. Employee handbooks should contain similar language that resume fraud discovered during employment is grounds for immediate termination. Of course, policies are only as good as their consistent enforcement.

EEOC settles landmark "cat's paw" discrimination case

When an adverse employment decision is made by a person who lacks impermissible bias, but was influenced by another individual who was motivated by such bias, is the employer liable for this rubber-stamped decision? While courts have not conclusively answered this question, the majority answer is yes. The leading case recognizing this theory of liability is EEOC v. BCI Coca-Cola Bottling Co. It famously describes this type of discrimination as "cat's paw" liability. "Cat's paw" derives from a fable in which a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another's bidding.

Last week, the EEOC reported that it settled with BCI on behalf of Stephen Peters, the African-American employee on whose behalf it sued, for $250,000. BCI fired Peters back in 2001. The district court had found that the managers who actually fired Peters did not even know that he was black. The appellate court, however, concluded that a jury could reasonably conclude that the termination was based on Peters' race: "In making the decision to terminate ... the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peter's race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace."

The "cat’s paw" theory of liability highlights the importance of employers conducting independent and thorough investigations prior to making any employment decision. Most courts that have adopted this theory of liability will not protect a decision maker's paper review of the decision without an independent investigation. Thus, instead of relying upon the recommendation of another, the actual decision maker should take such steps as interviewing the affected employee, independently interviewing other key witnesses, and personally reviewing relevant documents.

What else I'm reading this week #27

I thought it only appropriate to start this week's review with a picture from the balcony where I did a lot of this week's reading.

Anyhow, back to reality.

Wayne Schiess's legal-writing blog reports that Congress has passed something called the Plain Language in Government Communications Act of 2008. If laws start being written in plain English, what am I going to do for a living?

The Labor and Employment Law Blog provides 13 factors to consider in conducting a proper workplace investigation.

SCOTUS Blog tells us that the Supreme Court is considering taking up the scope of Title VII's religious exemption.

Law.com discusses the intersection between family-friendly workplaces and family responsibility discrimination.

Finally, BLR's HR Daily Advisor enlightens employers as to the pitfalls that await those who misclassify non-exempt employees as exempt.

Fired for not smoking

Hopefully everyone is aware that Ohio is a smoke-free state. With limited exceptions, it is illegal to smoke in any workplace within the state. Just this week, the City of North Royalton has gone one step further by banning smoking in city parks and recreation areas. For those who are interested, Wikipedia has a current list of all smoking bans around the country.

Life at Work, an excellent blog written by New Zealand employment lawyer Andrew Scott-Howman, has a story that illustrates the dramatic differences on this issue between the U.S. and parts of Europe:

The owner of a small company in Germany fired three workers because they were not smokers. It seems that their boss (evidently a smoker himself) felt that they were "disturbing the peace" in the workplace by being vocal about their smoking colleagues. "I can't be bothered with trouble-makers," said the boss. "We're on the phone all the time and it's just easier to work while smoking. Everyone picks on smokers these days. It's time for revenge. I'm only going to hire smokers from now on."

Under Ohio's SmokeFree Workplace Act, the German employer would almost certainly be liable for the terminations. The SmokeFree Workplace Act, makes it illegal for any employer to "discharge, refuse to hire, or in any manner retaliate against an individual for exercising any right, including reporting a violation, or performing any obligation under this chapter." One such right employees enjoy is the right to demand that a co-worker stop smoking.

As an aside, it's generally a bad idea to justify any workplace action as "revenge."

Companies should consider putting these anti-retaliation guarantees into their smoke-free workplace policies. If you don't have such a policy in place, give serious thought to having one drafted for you.

[Hat tip: Workplace Prof Blog]

Employment of teenagers brings new harassment headaches for employers

[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.

Such was the guidance given by the Court in EEOC v. V & J Foods, a case that involved allegations of sexual harassment by a teenage fast food employee. The key takeaway from this case is that there is no one-size-fits-all harassment policy. Policies must be tailored to the workforce, and differences in English proficiency, education level, and age could make for different policies, not in content but in language. The policy must be written so that the lowest common denominator in your workforce understands it and can use it.

The latter category, age, is especially important this time of year as we enter the summer hiring season. The ABA Journal points out that teen EEOC sexual harassment charges have risen 8%, while overall sexual harassment charges have actually fallen 15%.

Whether or not a company employees teenagers, these issues illustrate the importance of reviewing current sexual harassment policies for clarity and understanding. It is not enough to assume that all of your workers will understand the mechanisms that you have put in place for employees to make harassment complaints. The problem, however, is that a company might not know that its mechanisms have failed until it is sued. To combat these problems, companies should consider the following:

1. Including provisions in harassment policies that require employees to contact a supervisor, manager, HR, or someone else in a position of authority at the company if they don't understand the policy.
2. Creating multiple avenues for employees to make complaints - such as a phone number, email address, and more than one specific person within the company.
3. Placing the onus on the employee to keep complaining if they don't get a response from the company.

Taken together, these suggestions will make it harder for an employee to claim she did not understand the policy, she did not know who to complaint to, she did not feel comfortable with the person designated to receive the complaint, or that her complaint was ignored.

Why I'm a management-side lawyer

In responding to my piece from yesterday on Colorado's just cause initiative, Professor Paul Secunda at the Workplace Prof Blog had this to say:

I don't believe that employers only fire employees usually for good reasons. I guess that is why Jon is still a management attorney and I no longer am.

Paul's comment got me thinking -- why am I a management attorney? Let me try to answer it this way.

I'm not so naive to think that businesses only fire people for good reasons. Companies fire people for lots of reasons -- good, indifferent, and unlawful. In a perfect world, discrimination, retaliation, and harassment wouldn't exist. But they do, and companies, even those with the best of intentions, run afoul of the complexities of our myriad employment laws. Every lawsuit, administrative charge, and internal complaint is an opportunity for a company to learn from a mistake, whether legal or inter-personal. It's an opportunity to train employers how to handle an employee relations problem better the next time.

I say that mistakes can be legal or interpersonal because lawsuits don't necessarily happen because an employee was discriminated against. Lawsuits happen because people feel disrespected, unappreciated, or that they were just plain treated unfairly. It's my job to make sure that employers understand this dynamic. When that dynamic fails, it's my job to help employers get it right the next time.

In a perfect world, I'd never get a call that a client has been sued. In a perfect world, companies would call me once a year to give their HR practices a full review for compliance with the latest and greatest laws and court decisions. In a perfect world, companies would budget for proactive help, and understand that a small amount of legal fees spent upfront would save a mess of headaches and a huge legal bill later. Life, however, is far from perfect, and often I am only called when the summons arrives. While I love the thrill of the battle that litigation presents, it's the satisfaction I get from helping clients fix their problems so that they get it right the next time that motivates me to do my job everyday.

Protecting employment at-will

At-will employment is one of the hallmarks of American employment law. "Under the employment at will doctrine, either party to an employment relationship may terminate the employment at any time, with or without cause, for any legal reason or for no reason at all." Craddock v. Flood Co. One notable exception to this general rule are terminations that violate the discrimination laws. Others include terminations that breach express or implied contracts, or terminations that violate public policy. The touchstone of at-will employment is that an employer does not need just cause to terminate an employee.

In Colorado, labor unions are trying to change the rules. The Rocky Mountain News reports that a coalition backed by labor organizations is trying to get a constitutional amendment on the November ballot that would eliminate Colorado's at-will employment system and require just cause for all terminations. Under this "just cause" initiative, employers would be restricted from firing or suspending an employee unless the employer can prove incompetence, policy violations, willful misconduct, conviction of a crime involving "moral turpitude," employer bankruptcy, or economic circumstances that provide for layoffs of 10% of the workforce.

This measure is exactly the type that could gain popular support, and would alter the landscape of employer/employee relations in this country if it catches hold. It's not so much that it will restrict reasons for termination, although that would be a problem. Most businesses (or at least those that want to retain good employees) do not terminate arbitrarily, but only for a good reason. This law would put a premium on having well-defined employment policies on which employers could hang a "for cause" termination. The more troubling aspect of this proposal is that it places the burden on employers to prove just cause, as opposed to employees to prove that a termination was not justified. In the typical employment case, proving unlawfulness (such as discrimination) falls on the employee. If this law passes, terminations will be presumed unlawful unless the employer can prove otherwise. For the sake of businesses everywhere, let's hope that this proposal dies a quick legislative death, and does not catch on and begin to spread. [Hat tip: Point of Law]

What else I'm reading this week #26

As you're reading this, I'm hopefully sitting poolside with my family in Vero Beach, Florida. Until I'm back next week, probably more burned than tanned, but nevertheless rested, enjoy the latest and greatest from around the blogosphere.

John Phillips of The Word on Employment Law brings us an important tip on over-documentation. Artificially creating a paper trail to trap an employee could be just as dangerous to a company as failing to document legitimate performance problems.

Lou Michaels from Suits in the Workplace reports that the EEOC is telling people it will start treating "no rehire" clauses in settlement agreements as retaliatory. This treatment will put employers in the precarious position of accepting the former employee back or facing a claim that the failure to hire was the result of the prior discrimination charge. As Lou astutely points out: "The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this."

Mark Toth, at the Manpower Employment Blawg, provides some insight into a recent large settlement between the EEOC and Dillard's Department Store over the propriety of transferring an alleged sexual harasser to a different store in response to a complaint at the prior store.

BLR's HR Daily Advisor gives some tips on how to best handle the dirty job of terminating an employee.

Finally, Law.com has a bit on a topic I've covered a lot lately, bullying bosses.

Deconstructing race, ethnicity, and national origin

Even though this blog is called the Ohio Employer's Law Blog, I often write about issues that come up outside of Ohio because I think they will be of interest to Ohio businesses. Abdullahi v. Prada, decided recently by the 7th Circuit, is one such issue. It discusses the similarities and differences between race, nationality, and ethnicity, how they are often intertwined in employment discrimination issues, and the linguistic tightrope we often walk in trying to distinguish among them.

Race, nationality, and ethnicity are sometimes correlated, but they are not synonyms. A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits. The largest groups are whites, blacks, and East Asians. Iran is a country, not a race, and an "Iranian" is simply a native of Iran. Iranians and other Central Asians are generally regarded as "white," whatever their actual skin color; many Indians, for example, are dark. Some Central Asians are indistinguishable in appearance from Europeans, or from Americans whose ancestors came from Europe, while others (besides Indians), for example Saudi Arabians, would rarely be mistaken for Europeans. Some Iranians, especially if they speak English with an Iranian accent, might, though not dark-skinned, strike some Americans as sufficiently different looking and sounding from the average American of European ancestry to provoke the kind of hostility associated with racism. Yet hostility to an Iranian might instead be based on the fact that Iran is regarded as an enemy of the United States, though most immigrants to the United States from Iran are not friends of the current regime.

Because of the intrinsic similarities between these three concepts, the plaintiff was not precluded from suing her employer for "race" discrimination, even though in her administrative charge she had only checked the boxes for "national origin" and "religion".

[Hat tip: Workplace Prof Blog]

Butt painter settles wrongful discharge lawsuit

In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.

[Hat tip: Lowering the Bar]

Employment lessons from The Office

NBC's The Office should be required viewing for any HR professional or employment lawyer. In honor of its return tomorrow night, US News & World Report brings us 7 Career Lessons From The Office. I'll share with everyone #2 - "Boss" shouldn't be confused with "friend":

When Michael said he wants his employees to think of him as "a friend first and a boss second, and probably an entertainer third," these were not the musings of a great manager. It sounds nice but it doesn't work -- try firing a friend or telling your friends that you've slashed their employment benefits. Yes, Michael has had a few heart-to-hearts that may have temporarily helped his employees, but it's unlikely to have increased their performance or their loyalty to the company.

So there are no doubts, I bring you the original boss of The Office, David Brent, and his philosophy on management:

Indiana Supreme Court permits expert testimony on "workplace bullying"

In what could be considered the first major judicial opinion on workplace bullying, the Indiana Supreme Court, in Raess v. Doescher, permits an expert witness to opine on "workplace bullying."

Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries), sued Dr. Daniel Raess, a cardiovascular surgeon, for an alleged assault in the operating room. The testimony at trial was that Dr. Raess was angry at Doescher about reports to the hospital administration over the doctor's treatment of other perfusionists. Dr. Raess aggressively and rapidly came at Doescher "with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him." Doescher backed up against a wall to defend himself, believing that Dr. Raess "was going to smack the s**t out of" him. Dr. Raess then suddenly stopped, turned, and stormed out of room yelling to Doescher, "you're finished, you're history." For this conduct, a jury awarded Doescher $325,000.

Among the testimony that the jury heard what that of Doescher's expert witness, Dr. Gary Namie, one of the co-founders of the Workplace Bullying Institute. The Workplace Bullying Institute is the organization that is on the forefront of trying to get anti-bullying legislation passed. Dr. Namie testified as to the nature of Dr. Raess's behavior:

In my opinion it's an episode of workplace bullying.... I concluded that based on what I heard and what I read that [the defendant] is a workplace abuser, a person who subjected [the plaintiff] to an abusive work environment. It was a horrific day, it was [a] particularly aggregous [sic], outrageous ... episode.

The Indiana Supreme Court found no error in the trial court's ruling that allowed Dr. Namie's "expert" testimony. According to the court, the term "workplace bullying" can be used because the phrase is "like other general terms used to characterize a person's behavior...." It also found that the trial court did not err in refusing to instruct the jury that workplace bullying, in and of itself, is not illegal.

It should be frightening to any business owner that a court has legitimized Dr. Namie's theory of workplace bullying as some great societal wrong that needs to be fixed. My fear is that this opinion will embolden the workplace bullying movement, a movement that readers of this blog know I feel should die a quick death.

New Jersey to adopt paid sick leave - is Ohio next?

While the Ohio Healthy Families Act stalls in the legislature, and Sick Days Ohio, the group lobbying for this bill, gathers signatures to place in on November's ballot, New Jersey will join California and Washington to become the 3rd state (plus the District of Columbia and San Francisco) to require paid sick leave for employees. The New Jersey plan, however, differs from Ohio's Healthy Families Act in three key regards:

1. New Jersey's employees will partially fund their own paid leave through a payroll deduction. According to today's Philadelphia Inquirer, each worker will pay about $33 per year, while each is entitled to collect up to two-thirds of their salary, capped at $524 per week.
2. Employers will be able to require their employees to use accrued vacation days and other paid time off before using their allotment of statutory paid sick leave.
3. Businesses with fewer than 50 employees would not be required to keep jobs open to workers who take the leave.

These differences are a step in the right direction of protecting the interests of small business owners. A payroll deduction and benefit cap will alleviate some of the concerns over cost, although I doubt that $33 per year per employee will be enough to fully cover all employees. Requiring employees to use other paid leave before the statutory leave will prevent potential abuses by employees. Finally, not guaranteeing continued employment for employees of small businesses will allow those businesses to meet their staffing needs without fear of a retaliation lawsuit.

The OHFA has other deficiencies that still need to be addressed, particularly its anti-retaliation provision: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." "Negative factor" is much too forgiving of a standard, and likely will hamstring employers from taking action against any employee who is out for even a day with an illness.

The Ohio legislature should consider the OHFA, if only to keep it from appearing on the November ballot in its current form. Such debate should include consideration of these provisions from the New Jersey law, each of which addresses an important concern to Ohio's small business owners.

Court reminds us that harassment must be because of a protected class to be actionable

Williams v. Spitzer Auto World, Inc., decided this week by the Lorain County, Ohio, Court of Appeals, is a great illustration of the dangers the will befall corporate America if workplace bullying legislation becomes the law.

Michael Williams, an African-American, quit his job at Spitzer (it's been a busy couple of weeks for Spitzer) and alleged, among other things, racial discrimination, racial harassment, and constructive discharge. The jury found in favor of Spitzer on the harassment claim, but nevertheless awarded Williams damages on his constructive discharge claim. A constructive discharge is where "the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." The intolerable working conditions, however, must be tied to some unlawful conduct by the employer for an employee to claim a constructive discharge. Because Williams had not proved his harassment claim, the appellate court ruled that his constructive discharge claim must therefore also fail.

This case is a perfect illustration of what's wrong with the anti-bullying movement. If groups like the Workplace Bullying Institute get their way and generalized workplace bullying becomes illegal, every employee who quits a job because of an alleged abusive boss will have a colorable constructive discharge claim. The violation of the anti-bullying law would provide the unlawful conduct necessary to support the constructive discharge claim. It is for this very reason that anti-bullying legislation would spell the end of employment at-will, as every employee who resigns because they don't like their boss would be able to claim a constructive discharge.

10 reasons why I love my job

The National Law Journal has published its 15th annual list of bizarre employment law cases. My favorite is actually number 10: "Maternity Wear, Pregnancy Suit":

Philadelphia-based maternity clothes retailer Mothers Work Inc. agreed to pay $375,000 to settle a suit alleging that it refused to hire qualified female applicants because they were pregnant. LaShonda Burns alleged the company would not hire applicants for sales positions who were "visibly pregnant" or who it learned were pregnant through interviews. Company president Rebecca Matthias denied any discrimination, but said the settlement was reached to avoid "huge" costs and "distractions" of protracted litigation. She added, "It's important to make sure our culture and policy are lived at every one of our stores."

What's next, the NAACP being sued for race discrimination?

What else I'm reading this week #25

It's a constant struggle to decide which is the hotter topic in employment law -- wage and hour lawsuits or retaliation claims. I've been focusing a lot of attention lately to the latter, so let's start this week's review with a pair of articles on the former. BLR's Daily HR Advisor asks the question, FLSA Class Action Overtime Suits—Are You Next? To help answer that question, Law.com gives everyone a lesson in Overtime 101. Workplace Horizons provides a timely update on an attempt to revitalize new regulations for SSA No-Match letters. For an explanation of what these new rules would mean, see New rules require termination of illegal immigrants

Mark Toth at the Manpower Employment Blawg asks if obesity discrimination is more prevalent than even race discrimination. I gave my thoughts on this issue last June: Supersized lawsuits - obesity-related claims expected to rise

The Workplace Prof Blog gives an academic perspective on a case in which Wal-Mart fired a manager for engaging in an improper affair with a coworker after it hired an investigator to follow the couple down to Central America to catch them in the act.

Monster.com's HR Guru gives some pointers on dealing with workplace violence.

Finally, my friend Donna Seale at Human Rights in the Workplace gives us a Canadian perspective on employers' responsibility for harassment by non-employees.

Failure to hire "because of litigation" may constitute retaliation

Another day, another retaliation case out of the 6th Circuit. In Cline v. BWXT Y-12, LLC, the company declined to hire Cline, a former employee, for an open position because the company was "in litigation with Mr. Cline and that he may not be the best person ... because of the litigation factor." That litigation involved a claim of age discrimination. The decision makers testified that while they knew of the litigation, they did not know that it involved allegations of age discrimination. The district court threw out the retaliation claim on summary judgment, finding that because the decision makers did not have "any knowledge of the substance of Cline's present suit," they could not have known that he had engaged in protected activity.

The appellate court disagreed, and found that because the decision makers "knew that Cline was involved in litigation with the company ... the evidence permits the inference that the decision makers were unwilling to hire someone in litigation with the company." That inference "creates a triable issue of fact over whether the decision makers knew of Cline's protected activity."

"Wait a second," you might say, "There can be all kinds of litigation Cline could have been involved in. Just because he sued the company doesn't mean that he was engaged in statutorily protected activity. And, even if he was, can't a company have a neutral policy against hiring anyone who has sued the company, regardless of the cause." The Court hears your protests:

Something more is required, the company says, because Cline’s evidence still does not show that the decision makers knew that the litigation involved an age-discrimination claim.... In one sense the company has a point. Cline’s evidence permits the inference that Mack and Zava would not hire someone—anyone—“in litigation” with the company, and that view might suggest unbiased neutrality. It thus might have made no difference to Mack and Zava whether the litigation involved age discrimination if they preferred not to hire anyone in litigation with the company without regard to the subject matter of the lawsuit—whether it was a tort action, a contract dispute or a civil rights complaint. But such an across-the-board explanation—that any litigation with the company precludes any individual from being hired (or for that matter being retained as a current employee)—would necessarily sweep up protected civil rights claims and non-protected claims. And if such an explanation suffices for one hiring decision, why couldn’t an employer adopt a company-wide policy against hiring or retaining anyone in litigation with the company? As long as the policy were consistently followed, the employer would rarely have reason to obtain knowledge about the substance of the litigation, and at any rate it could always fairly say that it was the ruthlessly neutral policy, not the protected activity, that caused the adverse action.

Thus, to prove his retaliation claim, Cline will have to prove two facts:

1. That the company knew about the content of his claim; and
2. That the company did not have a policy against hiring (or retaining) individuals with litigation against the company.

This case poses the age-old question, "What does 'because of' mean in an employment lawsuit?" The answer, as with most things, is, "It depends." Cline presents a rational and common sense understanding that not all employment decisions that look retaliatory are retaliatory. I would never counsel someone to provide "engaged in litigation" as a reason for termination, because of the negative inferences that one can draw. But, if the decision maker does not know of the reason for the litigation, and the company can prove that it has a policy (written or unwritten) against hiring (or for firing) anyone who is in litigation against it, then the company genuinely has not engaged in retaliation.

Wal-Mart relents on reimbursement of medical costs

Last week I reported on Wal-Mart's lawsuit against a brain damaged ex-employee for the reimbursement of her health care costs. As of this morning, Wal-Mart has relented and will not pursue the collection of its costs. CNN.com quotes the letter Wal-Mart sent to the family: "We wanted you to know that Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank's care, and we will work with you to ensure the remaining amounts in the trust can be used for her ongoing care." Wal-Mart will also be modifying its health care plan to allow "more discretion" in individual cases.

Companies make decisions for any number of reasons. There are legal reasons (which guided Wal-Mart's original decision), business reasons, public relations reasons, moral reasons, and sometimes no reason at all. Just because something is permitted by law, however, does not mean that there are not better justifications not to take that action. In making any decision, employment related or otherwise, companies would be wise not to just consider whether a course of action is legal, but also what effect that action will have on its business, its relationship with its employees, and its public persona. Only thoughtful consideration of all of these factors will allow for fully informed corporate decision making.