Think before you e-mail

E-mail is a dangerous thing. It's impulsive, it's hard to get rid of, and when you get rid of it judges use nasty words like spoliation. It's exactly because it's so easy that it has quickly become the preferred mode of business communication. Often, it used for a lot of things it shouldn't be used for, like stealing trade secrets, disparaging the boss, and sexually harassing co-workers. And don't get me started on the dangers of "reply all." A good rule of thumb is before you send any e-mail that might be the least bit controversial or dangerous, save it in a draft folder for 24 hours and revisit the next day when you've cooled off and can decide whether you really want to send it.

Now, Google thinks it has the answer, "Mail Goggles":

Sometimes I send messages I shouldn't send. Like the time I told that girl I had a crush on her over text message. Or the time I sent that late night email to my ex-girlfriend that we should get back together. Gmail can't always prevent you from sending messages you might later regret, but today we're launching a new Labs feature I wrote called Mail Goggles which may help.

When you enable Mail Goggles, it will check that you're really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you're in the right state of mind?

Is this tongue in cheek? I think it's a legitimate tool, but I'm not really sure. But the lesson in a good one to take to heart. E-mail is a powerful tool that I cannot imagine how I lived without (like my DVR and HDTV, but for very different reasons). With great power, though, comes the responsibility. Think before you email, always. Your company's risk manager will thank you for it.

[Hat tip: Lowering the Bar]

Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.

Spurned employee loses retaliation lawsuit for lack of protected activity

Alshafi Tate cleaned offices for Executive Management Services. He also had a year-long sexual relationship with his supervisor, Dawn Burban. Indeed, according to Tate, he and Burban had consensual sex two or three times per week, sometimes at work and other times at the home of a co-worker.(1) Tate decided to end the relationship after he got married, but Burban would repeatedly call his home, and would tell him that if the relationship ended, he would lose his job. When Tate rejected her ultimatum, Burban instigated an altercation that ultimately led to his termination for insubordination.

Tate sued the company for sexual harassment and retaliation. A jury found against Tate on the harassment claim, but in his favor on the retaliation claim. Despite the favorable verdict on the retaliation claim, the jury awarded him $0 in compensatory damages. The judge later awarded him $7,830 in back pay, and his lawyers $65,129.39 in fees and costs.

EMS appealed the verdict on the retaliation claim. In Tate v. Executive Mgmt. Servs., Inc. (7th Cir. 10/10/08), the 7th Circuit reversed the verdict on the retaliation claim, finding that Tate had not engaged in a protected activity:

In order to engage in protected conduct, Tate only has to show that he reasonably believed in good faith the practice he opposed violated Title VII. ...

Even if we assume, for purposes of argument, that there may be circumstances in which a person who rejects his supervisor's sexual advances has engaged in a protected activity, Tate has not shown that he "reasonably believed in good faith the practice [he] opposed violated Title VII." ... There is simply no evidence in the record that Tate believed that Burban's actions were unlawful. In fact, the only statements that Tate made to Burban were that they "were not good with each other" and he "was not messing with her anymore," statements which do not indicate that Tate believed he was being sexually harassed. ...

We do not dispute that Tate protested about Burban's behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. ...

The Court dodged the real issue - whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. More often than not, I think they would be.

This case, however, points out the importance of character in employment cases. An employment lawsuit often is a morality play, and the judge and jury will determine the case on the character of the actors. Did the employee perform worthy of keeping his or her job? Did they employee behave as the jurors would have in his or her situation? Did the employer treat the employee fairly? Did the employer treat the employee as the jurors would have liked to be treated?

In this case, there is little doubt that the jurors punished Tate for what it perceived as amoral behavior. He slept with his boss, cheated on his wife, and then sued only when it backfired on him. He was not a sympathetic character to whom the jury could relate. While the jury may have believed that the employer did not fairly treat him, they were more put off by Tate's own misconduct. Thus, the zero dollar verdict, and the appellate opinion that skirted the real issue.

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(1) I'm reminded of the following exchange from the Seinfeld episode, The Red Dot:

Mr. Lippman: It's come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
George: Who said that?
Mr. Lippman: She did.
George: Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

WIRTW #51

It's impossible to escape news about the economy. The Connecticut Employment Law Blog lists 5 laws employers should be thinking about in today's economy. Meanwhile, Know HR lists 5 things employers should be telling their employees about their 401(K)s.

I've written previously on the ADA Amendments Act. Overlawyered discusses one attorney's argument that under the new ADA amendments, "being male" might qualify as a protected disability. Let me be the first to say that I'll eat my hat if any court ever says that my maleness qualifies as a disability.

The Delaware Employment Law Blog instructs on the handling of permanent replacement employees during a labor strike.

The Workplace Prof Blog discusses oral argument in a 3rd Circuit case on the issue of gender stereotyping under Title VII versus sexual orientation discrimination. The male plaintiff, who by all accounts acted very effeminate, argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes. The district court dismissed his sexual harassment claim because discrimination on the basis of sexual orientation is not unlawful. The appellate court will decide whether anti-gay discrimination is more based on sexual orientation or gender stereotyping. For my thoughts on this issue, see D.C. Court rules in favor of transgendered job applicant.

Work Matters argues that women should stop taking advantage of their sexuality by making bogus harassment claims to take revenge on men that had jilted them.

George's Employment Blawg talks about the importance of defining the terms of an independent contractor arrangement in a written agreement. I've also written before on this issue.

HRWorld writes on working through cancer.

The Privacy Law Blog reports on a 3rd Circuit decision which held that it was illegal for a labor union to access driver records for union organizing purposes.

Next week we'll celebrate the 1 year anniversary of this column, and announce a new weekly feature that will be joining the blog.

Supreme Court hears oral argument in Crawford v. Nashville - asks whether participating in an investigation equal protected activity

The Supreme Court started its term this week, and wasted no time hearing its first employment case. Yesterday it heard oral argument in Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit. Crawford asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford was terminated after she participated in an internal investigation of a sexual harassment claim made by a co-worker. The 6th Circuit held that her employer had no retaliated against her because participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, has argued the converse, that employees will likely avoid aiding employers with internal investigations if they believe they can be fired for do so, which will chill the investigations.

The Workplace Prof Blog has a thorough analysis of the oral argument. The Justices' questioning seems to indicate that case can go either way. The Justices were clearly bothered by a couple of things. First, the opposition clause would only protect those who take the employee's side, and not those that might support the employer. Practically, this should be a non-issue because those employees that support the employer should not have to fear retaliation. Secondly, the Justices expressed a real fear about opening the floodgates to federal court with a slew of retaliation claims based on purely internal investigations.

It is here that I agree with Professor McCormick from the Workplace Prof Blog. Ultimately, this is a policy driven, and not statutory driven, case. It should come down to whether five of the Justices value protecting the sanctity of internal workplace investigations. It seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. As one who's done his fair share of internal investigations, take it from me that it's hard enough as is to get employees to voluntarily cooperate. Assurances of no-retaliation are usually necessary to get them to open up, if at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. Because internal investigations are essential to our harassment jurisprudence, the Court would be sending the wrong message by coming down on the employer's side in this case.

A call for the reform of ballot measures

It's so nice when labor and business gets together to make a common sense decision for the betterment of all. Last month, Ohio's labor unions and business organizations compromised on the removal of the Healthy Families Act from November's ballot. Now, Colorado's unions and employers have done the same on its four controversial ballot measures.
The Denver Post reports that labor and management have reached an accord that will remove the following four issues from its ballot:

1. Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
2. Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
3. Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
4. Holding corporate officials criminally liable for illegal company activities.

Look, these ballot initiatives are scary. In Ohio, one labor organization only needed 250,000 signatures to place the populist, yet very dangerous, Healthy Families Act on the ballot. A system that can be so easily hijacked by special interests looking to push an agenda needs to be fixed. Supposedly, we elect legislators to enact, and a governor to sign or veto, legislation. They are supposed to speak as the collective majority will of the electorate. Yet, the legislature and the governor would have had no say-so if 50% plus 1 voted in favor of the Healthy Families Act.
One possible fix is a super-majority (60%?) to pass a ballot initiative. Another is to require many more signatures than the relatively small number that currently suffices. A third option is to eliminate ballot initiatives altogether. On balance, the super-majority option seems to makes the most sense - it preserves the sanctity of our separation of powers, allows the populace to still have a direct say on issues they it deems to be of great importance, and limits the ability of dangerous laws to play to populist sentiments.
This change is necessary to protect our state's economy from what is coming down the pike in two years when labor unions begin gathering signatures for the next anti-business ballot measures, such as those that were recently removed in Colorado.

Determining the 12-month period for FMLA leave

The FMLA allows eligible employees to take 12 weeks of unpaid leave during any 12-month period. Don't assume, however, that the FMLA's 12-month period equates to a calendar year. In fact, the FMLA allows employers to choose from four different methods of calculating the 12-month period:

1. The calendar year.
2. Any fixed 12-month "leave year," such as a fiscal year, a year
   required by State law, or a year starting on an employee's
   anniversary date.
3. The 12-month period measured forward from the date any
   employee's first FMLA leave begins.
4. A "rolling" 12-month period measured backward from the date an
   employee uses any FMLA leave.

Employers are free to choose any one of these four methods, as long as the choice is applied consistently and uniformly to all employees. Once a company picks one, it cannot change to another without first giving all employees at least 60 days notice, and only if the change does not cause any employees to lose any leave time.

There are pluses and minuses to each of these options. The first two  options are definitely the easiest to administer. However, they could allow for employees' double-dipping. An employee with a serious health condition could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (provided the employee recertifies the need for the leave). The same 24-week problem could impact option three.

Under option four, each time an employee takes FMLA leave the remaining leave entitlement would equal any balance of the 12 weeks that had not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the next year. However, beginning on the next February 1, the employee would only be entitled to four weeks of leave, with an additional four to accrue on June 1. and then again on December 1. This method offers employers the most flexibility, but is clearly the most difficult to administer and track.

Importantly, you have to designate one of these options. If an employer fails to do so, a court will apply the option that provides the most beneficial outcome for the employee.

Intermittent leave allows for recertification of the serious health condition each year

Let's say you have an employee who suffers from chronic migraine headaches. She applies and is approved for intermittent FMLA leave on September 24. Your company uses the calendar year to calculate FMLA eligibility benefits. During her period of intermittent leave, her condition worsens and she takes an extended period off, which lasts into the beginning of the next calendar year. Because you assume that FMLA eligibility cannot carry over from one year to the next, you ask the employee to recertify her need for FMLA leave as of January 1. When she fails to do so, you begin counting her absences as unexcused, and ultimately terminate her for excessive absences.

When the inevitable lawsuit is filed, are you correct that FMLA eligibility expires at the end of the FMLA year? Can you require the employee to recertify the need for the leave at the beginning of the next FMLA year, and legally deny further leave if she fails to do so? According to the 6th Circuit in Davis v. Michigan Bell Tel. Co. (9/29/08), the answer is yes:

[A] series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave. That leave, however, can only extend to the end of the twelve-month FMLA period in which it began. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination. (internal quotations and citations omitted).

Thus, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, constitute different periods of FMLA leave. If a company has an employee with a chronic condition that spans two years, it can legally re-determine the employee's FMLA eligibility at the beginning of each leave year, according to the Davis opinion.

This opinion has significant implications on how an employer chooses to calculate the FMLA leave year, an issue we'll look at tomorrow.

New Ohio minimum wage rate

Ohio's minimum wage law calls for the state minimum wage to increase by the annual rate of inflation each January 1. On September 30, the Ohio Department of Commerce announced that the new minimum wage effective 1/1/09 will be $7.30 per hour. Stash this tidbit away for when the calendar turns.

WIRTW #50

Tattoos seem to be hot issue this week. In addition to my post on this topic, The Pennsylvania Labor & Employment Blog, The Word on Employment Law, and The HR Capitalist all provide their own points of view.

Human Resource Executive Online has a nice summary of the various employment law ballot issues around the country. Why should Ohio companies care what is going on in other states? Because it may foreshadow what's next for Ohio.

Do you want to put yourself in the best position possible in litigation? Take the advice of the Manpower Employment Blawg and tell the truth.

The Delaware Employment Law Blog reports on a settlement that cost a company more than $300,000 for the acts of a bullying employee.

In a similar vein, On Point gives its thoughts on a $101,500 verdict in a sexual harassment claim brought by a barmaid for "Animal House"-type behavior at her workplace.

BLR's Daily HR Advisor lists 25 forbidden interview questions. I've previously written on how to avoid hidden interviewing traps.

Law.com discusses the difficulties inherent in trying to discover online data in litigation.

A second opinion on terminating the chronic complainer

There is perhaps nothing scarier to an employer than an at-risk employee who complains about discrimination. Many employees complain because they think it affords them some level of job protection, and many employers become gun shy in pulling the trigger for fear of a retaliation lawsuit.

A couple of months ago, I discussed Butler v. Alabama Dept. of Transportation, which gave employers hope that all is not lost when considering terminating a chronic complainer. Magyar v. Saint Joseph Regional Medical Center (7th Cir. 9/12/08) provided a different take on this issue, and serves as a cautionary tale for companies that want to terminate an employee who complains about discrimination.

Jessica Magyar worked as a hospital scheduler. Two times, a co-worker named Carl, 30 years her senior, sat in her lap and whispered to her that she was "beautiful."  Magyar reported the incidents to her immediate supervisor, Goddard, who then spoke to Carl but did not follow-up with Magyar.

While the harassment temporarily stopped, Magyar feared "that at any moment there might be a third incident." Thus, two months later she went to the Hospital's General Counsel and complained about Goddard's failure to respond to the complaint. Goddard then followed-up with Magyar, who secretly tape recorded the conversation. Approximately a week later, Goddard informed the GC that Magyar's issues "are resolved."

In the meantime, Goddard combined Magyar's job with that of another part-time employee. With the creation of the new position, Magyar received no further work and was eventually terminated. She then sued for retaliation.

The majority opinion found that Magyar's complaint up the chain of command constituted protected activity:

We note that, to succeed on a retaliation claim, Magyar need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a "sincere and reasonable belief" that she was opposing an unlawful practice.... In this case, the record sufficiently demonstrates that Magyar subjectively felt that she had been sexually harassed.... Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper “you’re beautiful” is the type of occurrence that, if it happened often enough, could constitute sexual harassment, and so Magyar's grievance was objectively reasonable.

In a strong dissent, however, Judge Posner takes the majority to task for missing the distinction between complaining about harassment and complaining about the handling of a complaint of harassment:

Magyar was complaining to the general counsel not of having been sexually harassed (she mentioned the alleged harassment only by way of background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance.

Even more troubling to Judge Posner, however, was that Magyar seemed to be setting up the hospital for a lawsuit:

Shortly after the meeting with Goddard of which Magyar now complains (the meeting in which she revealed the sexual assault), she emailed Goddard saying: "Thank you ... so much for listening and understanding. You made me feel a lot more comfortable when I left. Thanks :)"

The only possible explanation for Magyar's dramatic swerve from being pleased with Goddard's handling of the situation (the smiley-face email) to litigation planning, complete with an illegal secret tape recording, is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with Goddard that is the core of her complaint about Goddard's handling of the harassment grievance and the meeting with the general counsel makes no sense.

My friends at the Workplace Prof Blog take Judge Posner's side:

It seems that Judge Posner is correct. Magyar's complaint about the processing of her sexual harassment complaint  is not protected activity under Title VII. An internal investigation is not a practice made an unlawful employment practice by Title VII. It is rather a complaint about the handling of an internal investigation which is an internal business decision.

I do not think the analysis of this case is so simple. A complaint about the handling of a harassment complaint should count as protected activity. If an employee cannot complaint up the chain of command about a manager's handling of a harassment complaint, there would be little accountability or oversight for how a company adjusts the complaint. The company would always be able to hide behind the "internal business decision" defense and act with impunity towards the employee who takes issue with the harassment investigation. Even more troubling to me is Judge Posner's weighing of the facts on summary judgment. Yes, there are concerns about Magyar's motivation given the timing of her conduct and her surreptitious recording. Yet, aren't these facts that should be weighed and resolved by a jury?

For businesses, the takeaway from this case is that any employee who complains about discrimination or harassment should be treated with extra care. It does not mean that such an employee cannot be terminated. Any such termination, however, must be carefully deliberated and meticulously documents, your attorney should be consulted before reaching a decision, and you should brace yourself for the likely prospect of defending a retaliation lawsuit.

Employment decisions based on tattoos are not discriminatory

Last week I was having lunch in the Tulsa airport, and saw a woman with green hair, a bull ring through her nose, and at least a dozen large tattoos. I turned to my partner and asked, "Who would ever hire her?" Apparently, a lot of employers are asking the same question.

According to last Wednesday's New York Times, courts continue to find policies prohibiting tattoos and body modifications to be nondiscriminatory.

While there is ample evidence of tattooing’s migration from the backwaters of alternative culture into the mainstream (or at least onto some part of David Beckham’s body), we are still a long way from seeing facial tattoos on the selling floor at Bloomingdale’s or the trading floor of the stock exchange.

In case after case, the courts have found on-the-job appearance requirements — including policies forbidding tattoos and body modifications — to be nondiscriminatory.

Among the better publicized cases was that of Kimberly Cloutier, a Massachusetts woman who sued for the right to wear her 11 earrings and eyebrow piercings while at work as a Costco cashier. Claiming membership in the Church of Body Modifications, Ms. Cloutier argued her piercings were a form of religious expression. Although she ultimately lost, her case was soon followed by others in Massachusetts and in Washington State.

There is nothing discriminatory on its face about refusing to hire the green-haired, tattooed, or pierced. It is simply a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company can't have two standards to visible body art -- one for men and one for women, or one for whites and one for blacks. So, to answer my question, a company should not be liable if it rejects the green-haired airport barfly because of her unique appearance.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year. As it falls during the work week, many Jews (including yours truly) are taking the day off. The question, however, is what are an employer's obligations to an employee who asks for a day off to observe a religious holiday?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer's business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee's duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

D.C. Court rules in favor of transgendered job applicant

Four years ago, the 6th Circuit handed down a landmark decision in Smith v. Salem. In Smith, the Court reversed the district court's dismissal of a Title VII sex discrimination claim brought by a transgendered firefighter. It found that

Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity....

Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.

The following year, in Barnes v. Cincinnati, the same court followed suit by affirming a jury verdict in favor of Phillip Barnes, a pre-operative male-to-female transsexual who was denied a job in the Cincinnati Police Department.

Last week, the D.C. District Court, following Smith and Barnes, reached a similar conclusion in Schroer v. Billington. In that case, the Library of Congress had offer a position to David Schroer, until he told his his future employer that he would be showing up at work as Diane. He sued for gender discrimination after the Library rescinded the job offer. The trial judge ruled that the employer is liable for sex discrimination:

The evidence establishes that the Library was enthusiastic about hiring David Schroer -- until she disclosed her transsexuality.... The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination "because of ... sex."

In other words, while transsexuality and transgenderism are not protected classes in and of themselves, men who fail to conform to sexual stereotypes of how men are supposed to look and act might be protected by Title VII's prohibition against sex discrimination. My concern with this decision is that if gender identity is protected under the umbrella of sex discrimination, why do we need to amend Title VII to specifically include gender identity as a new protected class.

For companies, the lesson to be learned in a universal one - employment decisions should always be made based on legitimate criteria and not innate personal characteristics. The former can always be defended; the latter opens up an organization to liability.

WIRTW #49

It's been a fairly light week, but I still have a few gems to pass along from my fellow bloggers:

The HR Capitalist writes on the bane of every lawyer's and businessperson's spouse, Blackberry addiction.

The Connecticut Employment Law Blog dissects whether there is a right or wrong answer to using social networking sites in employment decisions. For my thoughts on this issue, see Revisiting the Facebooking of job applicants.

HR World reports on Working Mother Magazine's annual list of the 100 best companies for working moms.

Wage & Hour -- Developments & Highlights discusses a case recently filed in the Northern District of Ohio, which seeks to determine whether topless dancers are employees or independent contractors.

BLR's HR Daily Advisor tells us how companies beg to be sued.

Finally, Jottings by an Employer's Lawyer discusses Walmart's ongoing wage and hour problems.

BREAKING NEWS: President Bush signs the ADA Amendments Act

While the Wall Street bailout/rescue plan has the White House preoccupied, President Bush did find time today to sign the ADA Amendments Act. The new provisions go into effect January 1, 2009. For more on what this new law means, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

Discrimination verdicts rise 70% in one year

Earlier this week I reported that fewer plaintiffs are winning their federal employment cases. Another study, however, suggests that those those are winning are winning bigger verdicts. Mark Toth at the Manpower Employment Blawg reports on a study released by Jury Verdict Research, which concludes that the median discrimination verdicts rose from $147,500 in 2006 to $252,000 in 2007, an astounding 70% increase.

The good news, however, is that employers really are better off in federal court, where they won 43% of the time, compared to only 34% in state court. And, in the cases won by plaintiffs, the median jury award in federal court was 22% lower than the median state jury award.

Is this increase a trend or an anomaly? It's hard to say. 2008 already saw the largest employment law jury verdict in the history of Ohio, $46.6 million. In a today's difficult economy, it is certain that more employment cases will be filed. It will remain to be seen if jurors who are facing their own tough economic times will continue to be generous.

A prediction on how Ohio state courts handle the ADA Amendments Act

It's been fairly well reported, here and elsewhere, that Congress has passed the ADA Amendments Act, and once President Bush signs it, as he is expected to do, the ADA's changes will go into effect on January 1. Beginning on January 1, the definition of what qualifies as a "disability" under the ADA will be much broader statutorily. One of the key changes is that the Sutton v. United Airlines U.S. Supreme Court case, which held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment, will be expressly overturned.

The open question, however, is what will happen to the definition of "disability" under Ohio law. R.C. 4112.01(A)(13) defines "disability" as:

a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

This definition mirrors the old definition of "disability" in the ADA, and, in fact, Ohio courts often look to the old federal definition and the cases interpreting it (such as Sutton) to give some meat to the rather bare-bones statutory definition.

The question, then, is what will Ohio courts do with Ohio disability discrimination law after the ADAAA becomes federal law. Will Ohio courts follow Sutton and its progeny, or judicially adopt the new federal statutory definition? To the extent that the Ohio legislature has not changed the statutory definition of a "disability" under R.C. 4112, Ohio courts would be overstepping their bounds by doing so. The Congress made a decision to change the federal definition of disability. If Ohio wants to follow suit, it should do so through its legislature, and not via the courts' ad hoc adoption of the new definition.

If I am correct, and Ohio state law continues to mirror the old federal definition, it will be curious to see if plaintiffs in disability discrimination cases continue to favor state courts (with their better jury pools) and state law (with its more expansive damages), or will move towards federal claims in federal forums to take advantage of the broader coverage afforded by the ADAAA.

A rant about forms

Employment forms are not difficult to find. They are all over the internet. There are form handbooks, form employment applications, form harassment policies, form severance agreements, and myriad other employment and personnel related documents. Many companies even have old forms that an attorney prepared years ago, and dust them off when a situation warrants. Companies rely on these forms to save a few dollars in legal costs. After all, why pay a lawyer several hundred dollars to draft a form for a business when they are available for free? A lawyer must have reviewed it at some point, right? Not necessarily.

Even if a lawyer did review a form at some point, it may not be up to date, it may not have been reviewed for a specific state's particular employment laws, and it certainly was not reviewed for a specific legal situation. Forms are just that, a clean slate that can be adapted to a situation, but not perfect for any or every situation. Each state has specific laws that impact a form's language. Moreover, the law itself is always in flux. New cases come out that give new spins to old laws. New laws are passed that create new legal obligations. How many "form" EEO policies on the internet do you think take into account the Genetic Information Non-Discrimination Act that was passed in May, or account for Ohio's recent ban on military status discrimination? Do you think a generic employee handbook will take Ohio's smoking ban into consideration?

The point is, it may save a few dollars to use a form without consulting an attorney, but it will cost many dollars more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until a disgruntled employee files a lawsuit.

'Tis better to be in federal court after all

I don't think I'm giving away any state secrets of the defense bar by saying that all told, employers would much rather be in federal court than state court. Federal court gives a better jury pool and a much better chance that a summary judgment motion will be granted. Now, a study commissioned by the American Constitution Society confirms this long held belief. According to the study, which was based on data from 1979 to 2006, plaintiffs who brought employment discrimination suits in federal district courts prevailed only 15 percent of the time, compared to 51 percent for non-employment related cases. Some other key numbers from the study:

• The filing of employment cases in federal court has dropped by 37% from 1999 to 2007.
• The courts of appeals reverse 41% of plaintiffs' victories in employment cases.
• The same courts of appeals only reverse 8.7% of defendants' victories in employment cases.

While comparable state court data is not available, it does not take a huge leap of logic to conclude that federal filings are down 37% because more cases are being filed in state court.

This study is not necessarily groundbreaking news, but it does underscore the importance of forum selection in an employment lawsuit, and the real value to a company to have its case heard in federal court.

[Hat tip: Legal Blog Watch]