Shifting reasons for terminations could leave your business all wet

It only took the U.S. Ryder Cup team a few holes in the pouring rain Friday to realize that their rain suits were not as water-tight as they had hoped. Cold and wet, they had to resort to new gear bought off the rack from the merchandise tent. Thankfully for his team, Corey Pavin was able to take a do-over.

When you terminate an employee, though, you only get one shot. The reason you provide at the time of termination—whether communicated to the employee or merely internally documented—is the only reason that will matter in a subsequent discrimination lawsuit. If you try to change that reason down the road, you will open yourself up to a claim of pretext that could doom your defense.

For a textbook example of how shifting or changing rationales can sink your defense, I’ll leave you with Cicero v. Borg-Warner Automotive, Inc. (6th Cir. 2002). In that case, the employer provided three different reasons for the plaintiff’s termination—one at the time of firing, another in answering interrogatories, and yet another in responding to Cicero’s summary judgment motion. The court concluded that the changing explanations provided sufficient evidence of pretext from which a jury could infer discrimination:

An employer’s changing rationale for making an adverse employment decision can be evidence of pretext…. Shifting justifications over time calls the credibility of those justifications into question. By showing that the defendants’ justification for firing him changed over time, Cicero shows a genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination….

While the Court does not question business decisions, the Court does question a defendant’s proffered justification when it shifts over time. When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ decision.

---

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

Do you know? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

---

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

Off to see the Chamber, the wonderful Chamber of Commerce

Today, I am traveling to Columbus for the Ohio Chamber of Commerce’s Employment Law Committee meeting. For the uninitiated, the Ohio Chamber is our state’s voice for businesses and their policy interests. The Employment Law Committee tracks, dissects, and lobbies regarding employment-related legislation pending at the Statehouse. According to the agenda for our meeting [available as a pdf] we will discuss the following legislation:

• Protect the rights of employees to decide whether to be represented by a collective bargaining unit through a private ballot process.

• Reduce inconsistencies and duplication between state and federal employment laws.

• Push for a law that allows an employer to offer the existence of an anti-discrimination policy as an affirmative defense to a discrimination claim.

• Maintain the solvency of the state’s unemployment compensation trust fund by promoting measures that return unemployed workers to the workforce.

• Advance legislation that models the federal process for claims filed at the Ohio Civil Rights Commission.

Later this week, I’ll report specific items of interest discussed at the meeting.

---

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

WIRTW #146 (the trendy edition)

True confession time. I never really considered myself hip. In fact, if you knew me in high school (the bastion of all things hip), you would have probably labeled me a dork. And, it was probably warranted, with the debate team, and Model U.N., and the mock trial team. It’s okay. I came to terms with it a long time ago. All in all, I’d say my life worked out just fine. I have a beautiful wife, two adorable kids in whose eyes I can do no wrong, and I am a successful attorney. Nevertheless, I was happy to see that, at least according to the Wall Street Journal Law Blog (as reported by the Chamber Post), I have finally achieved that which every 16 year old strives for—trendiness:

In one area of litigation, there’s no debate: employment discrimination claims. A lot of folks have been fired, and many of them are are claiming that they were let go because of their race, age, gender, or because of a disability. Job bias claims, to put it mildly, are through the roof… In other words, young lawyers, forget bankruptcy law. That’s so 2009. Employment litigation is where it’s at.

Here’s the rest of what I read this week:

Social Networking

• Labor Disputes Arising out of Social Media – from Seth Borden at The National Law Journal

• Unions May Turn To Facebook To Find Unfair Labor Practices – from Hunton Employment & Labor Law Perspectives™

• The Future Of Blogging Might Surprise You – from Six Pixels of Separation

• Who Owns Your Social Media Relationships? What To Do When Your “Social” Employees Move On – from Jessica Lee at Fistful of Talent

• Creepy Start-Up Or Sign Of The Times? – from Nathan Vardi at The Jungle (Forbes.com)

• Why Every Business Should Have A Social Media Policy – from Social Media Law Update

• Court: privacy on social networking sites is wishful thinking – from Evan Brown’s Internet Cases

Discrimination

• Obsession with Nurse and EAP Recommendation not “Regarded As” Disability – from Philip Miles’s Lawffice Space

• The Bermuda Triangle: Age, Earnings and Productivity – from Stephanie Thomas at Compensation Cafe

• Michael Vick Rebounds: Becomes Model Employee After Conviction? – from Nick Fishman at employeescreenIQ Blog

• Beware seemingly innocent age-related comments vSindy Warren at the Warren & Hays Employment Law Blog

• How To Request Job Accommodations From Your Boss By Using the ADA – from UndercoverLawyer

• Mad Men, Madder Women: Have Roles Really Changed in the Workplace? – from Workplace Fairness

• Can America Meet the Challenge of Muslim integration? – from Abigail Esman at Pen & Sword (Forbes.com)

• Twisting and Turning towards Summary Judgment – from Workplace Prof Blog

• Wal-Mart Gets Backing From 19 Companies at U.S. Supreme Court - Bloomberg – from bloomberg.com

• In a Recession, you have a choice: (1) Hire Boomers, or (2) Get Your Squeak On – from What About Clients?

• When HR Is Harassed: What Then? – from Michael Haberman’s HR Observations

• Don’t Cry for Me Connecticut: Court Says Mere Factual Disagreements Not Necessarily Probative of Age Discrimination – from Daniel Schwartz’s Connecticut Employment Law Blog

Wage & Hour

• Where, and Where Not To Get FMLA Information from FMLA Insights

• Working Families Flexibility Act Proposed in Senate from Delaware Employment Law Blog

• FMLA: Verbal Notice Trumps Employer Policy from The Word on Employment Law with John Phillips

• Support Grows For Overhauling FLSA’s Principles from Wage and Hour Laws Blog

Non-Competes

• Top Ten Things to Consider When Drafting A Non-Compete Agreement from Trade Secrets & Non-Compete Blog

• Double Take - Tech giants agree to poach employees from Rob Radcliff’s Smooth Transitions

---

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

Honoring National Disability Employment Awareness Month on the Proactive Employer podcast

October is National Disability Employment Awareness Month. Tomorrow, to mark its first day, I’ll be recording on a special one-hour installment of Stephanie Thomas’s Proactive Employer podcast. For this special, Stephanie has gathered an all-star panel of guests. Appearing with me will be Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. I am very much looking forward to what should be an engaging and spirited discussion about the role of the ADA for today’s workforce.

The podcast will be available sometime next week on Stephanie’s website. You can also check out all 42 prior episodes on iTunes, or via The Proactive Employer iPhone app (Stephanie, where’s the Android love?). I always enjoy being Stephanie’s guest, and I am sure tomorrow will be no exception.

---

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

Productivity, yes; sleeping on the job, no

© Greg Hartmann

Tony Schwartz, writing at the Harvard Business Review's The Conversation Blog, thinks that employees would be more productive if they took naps everyday between 1 p.m. and 3 p.m. While I haven't studied the evidence he cites, this idea strikes me as a bad one. Even if a siesta can increase productivity and mental sharpness, think of the possible problems. Do you want to deal with the harassment complaint when you-know-who falls asleep next to oh-no-not-that-guy? Or, what about the customer relations nightmare when your largest account finds out his key contact person is sleeping at 2 p.m.? Perception often becomes reality, and the reality of that situation will be your largest customer finding a company where the employees don't nap during the work day.

Instead, let me suggest a couple of alternatives to increase employee productivity.

1. Spend an hour per day (during a non-peak time) in a technology-free zone. Turn off your phone, your PDA, and your computer. Imagine how much you could get done with no phone calls, no emails, and no Facebook.


2. Google lets its employees spend up to 20% of their time working on their own projects and ideas, a policy called Innovation Time. From this practice, Google has gotten an astounding 50% of its products (including Gmail, Google News, and AdSense). Most employers do not have the luxury of their workers spending one day per week doing whatever interests them. But, there are other things you can do to spark productivity in your workplace. For example, my firm just awarded three sets of Indians tickets to employees who submitted the best new ideas (Please, no jokes about whether going to see the Indians is a reward or a punishment). 

There is a lot your business can do to promote productivity and creativity without encouraging employees to sleep on the job. It just takes a little creativity on your own part.

---

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

Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits

Grow your dreadlocks
Don’t be afraid of the wolf-pack
A tell you, one man a walkin’
And a billion man a sparkin’
Rastaman, live up

~Bob Marley, Rastaman Live Up

The EEOC has sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks. According to the agency:

Christopher Woodson applied for a job as a loader at Lawrence Transportation’s Waynesboro, Va., facility in May 2008. Woodson, who is Rastafarian, wears his hair in dreadlocks in accordance with his religious belief that he should refrain from cutting his hair…. Lawrence Transportation refused to hire Woodson as a mover because he would not cut his hair, even though Woodson had fourteen years of experience in the moving industry, including several years with Lawrence prior to his conversion to the Rastafarian religion. To address the company’s concerns regarding the appearance of Woodson’s hair in relation to Lawrence Transportation's grooming policy, Woodson offered to tie his hair up, wear a head wrap or wear a cap over his head. The hiring official rejected Woodson’s offers and told Woodson that the company would not hire him if he did not cut his hair.

Amanda Hess, writing at TBD.com, quotes a press statement from Lawrence Transportation, in which it defends its decision:

“Lawrence Transportation did not hire Mr. Woodson because he would not comply with our personal appearance policy,” the statement reads. According to Lawrence Transportation, employees are required to have “close personal contact” with customers, and non-standard hairstyles could affect Lawrence's ability to “provide the service expected by” these people.

“[Woodson’s] hair was down to the middle of his back and he was asked to get it cut to about shirt collar length,” the statement continues. “He refused to comply with this neutral policy.”

Personal appearance policy is a huge red flag. As I’ve discussed before, Title VII requires an employer to reasonably accommodate an employee’s sincerely held religious belief, practice, or observance that conflicts with a work requirement, unless the accommodation would create an undue hardship. The employer in this case is arguing that it does not have to accommodate Woodson because his long, dreadlocked hair will deter customers and cost it business. That argument, however, smacks of the very stereotypes Title VII protects against.

The EEOC continues to take a long, hard look at businesses that fail to accommodate religious practices that cause employees to look (or not look) a certain way. Unless your business can tie employees’ appearance to an integral part of your business (safety issues, Disney cast members, Abercrombie & Fitch’s “look”), you should think (and re-think) about any decision not to accommodate an employee’s religiously-based appearance or grooming.

[Hat tip: Overlawyered]

---

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

Do you know? More on the lack of privacy in social media

There are not (yet) many cases dealing with the discovery of litigants’ social networking information. Thus, whenever a court addresses the issue, it becomes newsworthy.

Romano v. Steelcase Inc. (N.Y. 9/21/10) [pdf] is a personal injury case. The defendant claimed that information the plaintiff posted on her Facebook and MySpace pages was inconsistent with her claim regarding the nature and extent of her injuries. The court disagreed with the plaintiff’s argument that she had any expectation of privacy what she posted on social networking sites:

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

It is becoming increasingly more difficult to convince courts that individuals have any privacy expectations in social networking information. Instead, these discovery disputes turn on issues of relevancy—whether the information bears on any issue in the case. In cases involving injuries (whether physical or emotional, and including employment cases), plaintiffs will have a very hard time shielding this type of information from discovery.

[Hat tip: Delaware Employment Law Blog]

---

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

Silence can be golden in defending discrimination cases

Ben Franklin once said, “As we must account for every idle word, so must we account for every idle silence.” In Young v. Galion, LLC (N.D. Ohio 9/17/10) [pdf] the court latched onto the plaintiff’s silence dismissing his age discrimination claim:

[T]he major flaw in plaintiff’s case is his inability to provide any evidence of a nexus between his termination and any discriminatory motive. He made no protest to that effect to the defendant, and never mentioned it in conversations with a fellow employee with whom he had a close relationship. Plaintiff’s deposition testimony was clear as regards the fact that he had no inkling that age bias purportedly entered into the decision to discipline or terminate him prior to meeting with an attorney subsequent to his termination.

One of the things I look for in defending any discrimination case is whether the employee complained of discrimination during his or her employment. While it is not required that one complained it certainly makes the claim of discrimination appear less believable if the plaintiff never raised the issue with anyone until the filing of the lawsuit.

---

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

WIRTW #145 (the bad legislation edition)

Earlier this week, I urged you, my readers, to take a stand against the Paycheck Fairness Act by calling or emailing your Senators and expressing your opposition to this bill. The following bloggers share my concerns (albeit some more than others):

• Read This Before You Decide on Paycheck Fairness Act – from Stephanie Thomas’s The Proactive Employer

• One last push for the misnamed Paycheck Fairness Act – from Carter Wood at PointOfLaw Forum

• Paycheck Fairness Act Poised for Passage – from Ann Bares at Compensation Force

• Paycheck Fairness Act: You Decide Is This Necessary? – from Michael Haberman’s HR Observations

• Labor Secretary and Lilly Ledbetter Push for Paycheck Fairness Act – from Shopfloor.org

• A Late Addition to the Roster: Paycheck Fairness Act Finally Appears in the Senate – from Employment Class Action Blog

• Fair Pay Isn’t Always Equal Pay – from Christina Hoff Sommers at the New York Times

• Unfair “Paycheck Fairness Act” shafts workers with dangerous jobs; equal pay for unequal work – from Hans Bader at DC SCOTUS Examiner

• “Wage Discrimination Touches Everyone,” Says Lilly Ledbetter – from BLR

Here’s the rest of what I read this week:

Discrimination

• Italian-Americans choose the wrong causes – from Rob Schwartz’s Fairness Matters

• Dissecting the EEOC’s Position on Criminal Background Checks – from employeescreenIQ Blog

• Muslims Report Rising Discrimination at Work – from Steven Greenhouse at the New York Times

• McDonnell Douglas Bites the Dust in Tennessee – from Michael Fox’s Jottings By An Employer’s Lawyer

• Many Types of Evidence Help Prove a Discrimination Case – from Tom Crane’s San Antonio Employment Law Blog

• Tenth Circuit Decides Important Age Discrimination Case – from Today’s Workplace

• Should Employers Try More Cases Before Juries? – from Patrick Smith’s Iowa Employment Law Blog

• The Internet - The Next Frontier for the ADA: Will Your Website Comply? – from Pennsylvania Labor and Employment Blog

• Harassment complaints: Don’t let your corrective action be the tree falling in the woods – from Sindy Warren at the Warren & Hays Employment Law Blog

• Caution: Improper Harassment Investigations Can Result in a Hostile Work Environment Claim – from Wyatt Employment Law Report

• Employee Sues, Settles, Gets Rehired – from Workplace Prof Blog

• Plaintiff failed to show that Facebook pics supported hostile workplace claim – from Evan Brown’s Internet Cases

Wage & Hour

• The FMLA Connection (in Connecticut) to Organ Donors and How Employers Can Help – from Dan Schwartz’s Connecticut Employment Law Blog

• Tougher regulations and penalties when employing minors – from Employment Law Bits

• OSHA’s Applicability to NFL – from The Word on Employment Law with John Phillips

• NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service – from The FMLA Blog

• Seventh Circuit Clarifies Overtime Damages For Misclassified Employees – from Wage and Hour Laws Blog

• Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim – from FMLA Insights

• Congress Proposes Additional Independent Contractor Legislation: “The Fair Playing Field Act” Receives Strong Support From White House – from Hunton Employment & Labor Law Perspectives™

Employee Relations

• B is for Bully – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why You’re More Likely Than Ever to be Held Hostage Over That Office Romance – from Kris Dunn’s The HR Capitalist

• Employee privacy: Audit uncovers on-the-job sexting – from Stephen Meyer’s HR Cafe

• Superbug Reminds Employers to Get a Pandemic Policy – from Delaware Employment Law Blog

• They Know Who You (and your employees) Are! – from Philip Miles’s Lawffice Space

Trade Secrets and Non-Compete Agreements

• Eight Reasons Small Businesses Should Use Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Noncompete Agreements: Stopping Former Employee From Soliciting May Not Protect Business – from Rush Nigut’s Rush on Business

• Protecting your business from an employee departure - the IT response – from Rob Radcliff’s Smooth Transitions

• Why Should I Be Concerned If Only One of My Sales Managers has Signed the Company Noncompete/Confidentiality Agreement? – from Trade Secret / Noncompete Blog

---

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

Does rampant age discrimination in this job environment make sense?

Motoko Rich writes in the New York Times that older unemployed workers may never work again:

Of the 14.9 million unemployed, more than 2.2 million are 55 or older. Nearly half of them have been unemployed six months or longer, according to the Labor Department. The unemployment rate in the group—7.3 percent—is at a record, more than double what it was at the beginning of the latest recession.

After other recent downturns, older people who lost jobs fretted about how long it would take to return to the work force and worried that they might never recover their former incomes. But today, because it will take years to absorb the giant pool of unemployed at the economy’s recent pace, many of these older people may simply age out of the labor force before their luck changes.

I cannot accept an argument that businesses do not desire older workers. Conventionally, a business might choose to hire young because of a belief that a more experienced candidate would demand a higher salary. Thus, even though a younger hire would require more in the way of sunk costs (training, etc.), he or she would make up for it with lower pay.

This argument no longer holds true. Do you think for a minute that anyone, no matter the age, who finds himself or herself unemployed for an extended period of time has any leverage to make salary demands? Thus, businesses are in a position to hire more experience for less pay. Assuming starting salaries are equal, which candidate would you hire: the 25-year-old with scant experience, or the 50-year-old with decades of experience? The former will cost your business time and money in training, along with lost productivity. The latter will bring your company a skill-set that will let him or her hit the ground running with little or no training. To me, the decision is a no-brainer. For this reason, I simply cannot accept Mr. Rich’s argument that those 50 and older might find themselves unemployed in perpetuity.

[Hat tip: The Word on Employment Law with John Phillips]

---

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

Social media isn’t the only media that can come back to haunt you

It seems that every day, there is another example of an employee who got in trouble for something posted on Facebook, or Twitter, or one of the myriad other social media websites. This week’s story—via The Word on Employment Law with John Phillips—concerns an Ohio teacher busted for messaging on Facebook with a student about having sex. These issues, though are not new. They have just become more prominent because of the prevalence and pervasiveness of social media in our lives.

For example, consider the case of Christine O’Donnell. A mere five days after she won the Delaware Republican senatorial primary, comedian-cum-pundit Bill Maher ran on his current TV show an 11-year-old clip from Mr. Maher’s old TV show of Ms. O’Donnell discussing her trifling with witchcraft as a teenager. CNN.com has the details (and the video):

“I dabbled into witchcraft - I never joined a coven. But I did, I did…. I dabbled into witchcraft,” O’Donnell said during a 1999 appearance on the show, which ran on ABC. “I hung around people who were doing these things. I'm not making this stuff up. I know what they told me they do.”

She then described one of her first dates—with a witch “on a satanic altar.”

“I didn't know it,” she said. “I mean, there's little blood there and stuff like that. We went to a movie and then had a midnight picnic on a satanic altar.”

Stories like these will become more prevalent as social media continues to pervade every aspect of our lives. The question for employers to answer is to what extent revelations like those surrounding Christine O’Donnell will play (and should play) in decisions affecting the hiring of new employees and the retention of existing employees. Should a decades-old youthful indiscretion disqualify someone from employment? We all have things in our past that we hope do not get discovered in our present. Social media, however, makes our pasts that much harder to distance ourselves from.

I offer no answers, but merely raise the issue for consideration as we continue our metamorphosis into a society that favors public disclosure over personal privacy.

---

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

Paycheck Fairness Act poised for passage - This is a huge deal for employers

The Washington DC Employment Law Update is reporting that the Senate is set to start debate on the Paycheck Fairness Act, perhaps as early as this week. Employers, this news is huge. The Paycheck Fairness Act has the potential to revolutionize (and not in a good way) companies' payroll practices. For more on why you should be very concerned about this legislation, please take a few moments and read my summary from a few months ago -- What is the Paycheck Fairness Act and why should employers be concerned? Then, take a few more moments and call or email your Senator to express your opinion that this legislation should not pass:

• Senator Sherrod Brown: 888-896-6446, or brown.senate.gov/contact
• Senator George Voinovich: 202-224-3553, or voinovich.senate.gov/public/index.cfm?FuseAction=Contact.ContactForm

---

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

Do you know? Men are entitled to protection from sexually hostile work environments too

The typical sexual harassment case involves a man harassing a woman. Harassment, however, isn’t limited to just man-on-woman. The umbrella of sexual harassment also includes man-on-man, woman-on-woman, and, as recently discussed by the 9th Circuit, women-on-men. In EEOC v. Prospect Airport Services (9th Cir. 9/3/10) [pdf], the 9th Circuit held that that a female co-worker’s “relentless” pursuit of a male employee—which included six months of constant sexual pressure and humiliation—could form the basis of a sexually hostile work environment. In ruling, the court rejected any stereotypes that man would welcome harassment from a female co-worker:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome…. [T]hat is a stereotype…. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not….

This case serves as a good reminder to review your harassment policy for completeness. Does it cover all kinds of unlawful harassment? Not just the reverse sexual harassment discussed in Prospect Airport Services, but harassment based on race, national origin, religion, age, disability, military status, genetic information, and (where applicable) sexual orientation? If not, it’s time to call your lawyer, update your policy, and re-train your employees on their non-harassment responsibilities.

---

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

More on cancer as a disability

Last week I wrote how businesses would likely see more employees claim cancer as a protected disability under the Americans with Disabilities Act. The EEOC proves my point. The agency recently announced that it has sued a Michigan company for failing to accommodate an employee who needed a reduced work schedule while undergoing cancer treatments:

According to the agency’s pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC’s suit alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC’s obligation to reasonably accommodate Nelson’s disability.

Meanwhile, in Boca Raton, Florida, a federal jury awarded Kara Jorud $8.1 million for her claim that Michael’s Arts and Crafts terminated her because of her cancer.   Ms. Jorud, suffering from breast cancer, had a double mastectomy and was ill from the follow-up chemotherapy. She claimed that her manager forced her back to work early following her surgery, required her to work while ill, and harassed her. The Palm Beach Post recounts Jorud’s manager telling her, “How often do you have to do this? You will be here on Monday after chemo.” LawyersandSettlements.com fills in the rest of the details:

In her lawsuit, Jorud said she had taken a six-week medical leave following her surgery, but within days the cancer patient began taking calls from her District Manager inquiring as to her return. Jorud was originally tasked to turn around the store’s reportedly failing operations.

Jorud returned to work less than a month after surgery because, she testified, she feared for her job.

At one point, the plaintiff brought her fiancé and his son into the store to help her shift inventory ahead of a pending delivery because she was weak from the aftereffects of chemotherapy. The cancer patient was fired three days later, reportedly one day before her next scheduled chemotherapy treatment.

The plaintiff was also accused of theft prior to her firing, a charge that Jorud later disproved and the district manager later admitted to be false, according to the newspaper account.

These cases should serve as a warning sign for employers dealing with employees with serious treatable illnesses. It is no longer enough to provide an employee the statutorily mandated 12 weeks of FMLA leave, or to merely follow one’s own leave of absence policy. Instead, as these cases illustrate, employers should consider reasonable accommodations such as part-time or modified work schedules.

---

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

WIRTW #144 (the shameless plug edition)

For the last three years, the ABA has published its Blawg 100—a list of the best legal blogs as judged the the editors of the ABA Journal. The ABA will publish its 2010 list in December. This year, however, the ABA is soliciting recommendations:

Use the form below to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. If there is more than one blawg you want to support, feel free to send us more amici through the form. We’ll be including some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit…. Friend-of-the-blawg briefs are due no later than Friday, Oct. 1.

I’ve already made my votes (which I’m keeping to myself).

Here’s the rest of what I read this week:

Discrimination

• Friends – Rachel promotes rites of mothers? – from Rob Schwartz’s Fairness Matters

• Discrimination against Muslims and the “Ground Zero mosque” – from Sindy Warren at the Warren & Hays Employment Law Blog

• All Eyes On Ines Sainz Sexual Harassment Controversy – from Caroline Howard’s Social Medea

• Stop Asking Me About Inez Sainz – from Tim Eavenson’s Current Employment

• EEOC Steps Up Enforcement of ADA Amendments Act of 2008 – from Southwest Florida HR Law & Solutions

• New ADA Regulations for Titles II and III – from Workplace Prof Blog

• Vacant Position: Reasonable Accommodation for Disability – from The Word on Employment Law with John Phillips

• EEOC Weighs in on Employment Background Checks – from Nick Fishman at the employeescreenIQ Blog

• A Victor-y For One Employer Sends Mixed Messages On Disability Claims – from Prima Facie Law Blog

• Things Employers Can Ask in a Job Interview – from Tom Crane’s San Antonio Employment Law Blog

• Chicago-area Man Awarded $4.2 Million by Jury for Religious and Ethnic Harassment – from Chris McKinney’s HR Lawyer’s Blog

• Employee Complaint Investigations: Why you must make interviewees comfortable – from Stephen Meyer’s HR Cafe

• Stereotyping and “Reverse” Sexual Harassment – from Teresa Cheek at the Delaware Employment Law Blog

• Comment on Worker’s Cane Left CEO Limping Out of Court – from Mindy Chapman’s Case in Point

Labor Law

• NLRB Is Set to Rule in Favor of Unions Not Employees – from Michael D. Haberman’s HR Observations

• Obama Deems Chance of EFCA Passage Dim – from Washington D.C. Employment Law Update

• Why would a union favor its own decertification? – from Walter Olson’s Overlawyered

• Employee Who Opposes Unionization Can Seek Injunction, Says Eleventh Circuit from Florida Employment Law Blog

HR & Employee Relations

• $75,000: The Magic Number – from Matt Gibson’s Wills & Wealth

• And This Little Workplace Piggy Had None – from Workplace Diva

• What I Learned From Rex Ryan, or Why Workplace Bragging is a Bad Idea – from TLNT

• Why employment law is like “Survivor” – from Jay Shepherd’s Gruntled Employees

Social Media & Technology

• Social Networking and Workers’ Compensation Law at the Crossroads – from Gregory Duhl & Jaclyn Miller

• Check You Gmail: Google Engineer Accused of Being a Little Evil – from Abovethelaw.com

• The “Public” vs. “Private” Facebook Page: Thorny Issues for Employers – from Dan Schwartz’s Connecticut Employment Law Blog

• Non-solicits that address social media communications – from Rob Radcliff’s Smooth Transitions

• New Site Protects Trademarks in Social Networks – from Robert Ambrogi's LawSites

• As Germany Considers Restrictions on Use of Social Media for Recruiting, Multi-National Employers Need to Start Thinking About Social Media Policy 2.0 – from Workplace Privacy Counsel

• Major Lindsey Drops Suit After Federal Court Nixes Computer Fraud & Abuse Act Claim and Hints at RICO Dismissal – from Trade Secrets & Non-Compete Blog

• Why Facebook, Twitter and Jurors Don’t Mix – from DailyFinance:

Wage & Hour

• New Bill to Attack Worker Misclassification – from Mary Keating’s Maryland Employment Law Developments

• Employer Agrees To Forfeit $1.2 Million And Pay Fine For Conspiring To Harbor Illegal Aliens – from Eric Welter’s Laconic Law Blog

• Equal Pay for Equal Work? Not Necessarily – from You’re the Boss Blog

• Paycheck Fairness Act Reintroduced in Senate – from Washington D.C. Employment Law Update

• States Are Enhancing Enforcement of Wage Hour Laws: Revenue for The State And Wages to the Workers – from Wage & Hour - Development & Highlights

• FMLA FAQ - What's the Deal With the Poster? vFMLA Insights

• Fifth Circuit Holds Staff Leasing Company May Assert Motor Carrier Exemption – from Wage & Hour Counsel

---

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

Taking more than one bite at the apple in discrimination cases

One of the anomalies of Ohio’s employment discrimination statute is that it provides for individual liability for managers’ and supervisors’ own acts of discrimination. This peculiarity presents at least three issues for businesses to deal with:

1. By adding an in-state manager or supervisor as a defendant, Ohio employees can make it difficult for out-of-state businesses to remove discrimination cases to federal court based on diversity of citizenship.

2. A conflict of interest may prevent one attorney from defending both the business and the individual defendant, thus signaling to the plaintiff that there may be liability problems.

3. A federal court may pass on hearing the state law claims against the individual defendant, thereby giving the plaintiff two bites at the apple.

Price v. Carter Lumber Co. (Ohio Ct. App. 9/15/10) [pdf] is a poignant illustration of this third issue.

Gerald Price claimed that his former supervisor, Jim Collins, told him that Carter Lumber was not willing to work around his dialysis schedule and therefore would not rehired him. Price sued Carter Lumber and Collins in federal district court for disability discrimination. The federal court dismissed without prejudice (meaning Price was free to re-file) the state-law claims against Collins. Price then sued Carter Lumber and Collins in state court. After Carter Lumber won a jury verdict in federal court, both it and Collins moved the state court for dismissal.

The law uses a lot of Latin phrases, one of which I am about to introduce—res judicata. Ohio law uses res judicata as an umbrella term to cover both claim preclusion and issue preclusion. Claim preclusion bars subsequent actions between the same parties (or those related to them) on all claims arising out of the transaction that was the subject of a previous action. Issue preclusion bars the same parties (or those related to them) from re-litigating an issue in a subsequent action if the fact or point was directly at issue in a previous action and was ruled upon by a court. In other words, a plaintiff is only supposed to get one bite at the proverbial apple.

The court of appeals concluded that even though a federal jury concluded that Carter Lumber did not discriminate against Price, a state court jury might have the opportunity to determine the same issue as to Collins, one of its supervisors. Whether Price was able to litigate his discrimination and intentional infliction of emotional distress claims against Collins would hinge on the trial court’s review of the specific issues decided by federal jury.

It is likely that Collins will ultimately succeed and have the state court claims dismissed. Yet, that fact that he has to spend time and money litigating the issue—when a jury has already concluded that the employer did not discriminate—is reason enough for Ohio’s legislature to amend our state discrimination statute to bring it on par with its federal counterpart by eliminating individual liability. 

---

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

Card check is dead … long live card check

The NLRB is set to revisit its rules for secret ballot elections for voluntarily recognized unions. If it reverses course, it will administratively do that which Congress has been unable to do—make secret ballot elections that much harder to obtain. The process the NLRB is reconsidering—its 2007 decision in Dana Corp.—is needed to ensure that employees always have access to a secret ballot election to protect their free choice in deciding whether or not to be represented by a labor union. And, I have the anecdotal evidence to prove it. First, some background.

Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign (known as a “neutrality agreement”).

In Dana Corp., NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

Dana Corp. was decided at the height of the Bush-era, pro-management NLRB. Now, the Obama NLRB is considering overturning Dana, and going back to the prior rule that barred any election petitions for up to one year following a voluntary recognition. Following its decision in Rite Aid Store #6473 and Lamons Gasket Co., the NLRB issued a Notice and Invitation to File Briefs [pdf] on the following six issues:

1. What has been their experience under Dana and what have other parties to voluntary recognition agreements experienced under Dana?
2. In what ways has the application of Dana furthered or hindered employees’ choice of whether to be represented?
3. In what ways has the application of Dana destabilized or furthered collective bargaining?
4. What is the appropriate scope of application of the rule announced in Dana, specifically, should the rule apply in situations governed by the Board’s decision regarding after-acquired clauses in Kroger Co., 219 NLRB 388 (1975), or in mergers such as the one presented in Green-Wood Cemetery, 280 NLRB 1359 (1986)?
5. Under what circumstances should substantial compliance be sufficient to satisfy the notice-posting requirements established in Dana?
6. If the Board modifies or overrules Dana, should it do so retroactively or prospectively only?

I can provide an anecdotal answer to number one. Since the NLRB decided Dana Corp. in 2007, employers and unions have filed 1,111 requests for voluntary recognition (The NLRB has put together a spreadsheet summarizing all of these cases). Those requests resulted 85 election petitions, 15 of which the employees voted against the voluntarily recognized union. I was one of those 15 elections. The employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. All 33 employees voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice. For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice through a secret ballot election.

---

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

Do you know? Discrimination against Muslims

We are now nine years post-9/11. To say that relations between Americans and Muslim-Americans are poor is an understatement. Our country has been worked into a froth over a proposed Mosque at Ground Zero. It seems that Muslims rank first in the category, “People against whom discrimination and marginalization is culturally acceptable.” Employment discrimination claims brought by Muslims have hit record numbers—higher in 2009 than even in 2002.

Discrimination against Muslims comes in two forms: national origin discrimination and religious discrimination. Both types are not that much different than a race discrimination claim. Failures to hire or promote, terminations, other unlawful employment actions, or harassment because of on one’s national origin or religion all constitute unlawful discrimination. For example, take the recent pair of cases filed by the EEOC against meatpacker JBS Swift, in which Muslim employees alleged that  blood and bones were hurled at them, bathroom walls were covered with vile graffiti and company supervisors fired many Islamic employees.

Religious discrimination, however, presents its own unique set of issues, because employers have an affirmative obligation 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. Two recent stories illustrate the problems that these claims present for employers. Muslim employees continue to sue retailer Abercrombie & Fitch, challenging its “Look Policy” that prevents those who wear hijabs (religious head scarves) from being hired. Then, there is the Disneyland case, in which a Muslim employee, working as a hostess at a restaurant, protesting the theme park’s insistence that her costume cover her hijab so that she meets the “The Disney Look”—a 17-page document [pdf] outlining dress and grooming guidelines for all Cast Members to maintain uniformity and the suspension of disbelief, which has been used since Disneyland opened in 1955.

We all know that discrimination of all kinds is wrong. But, Muslim-Americans are practicing politics of exclusion in a time that calls for the opposite so that we, as a nation, can heal. The issue isn’t one of rights. Of course, one has a right to build a Mosque where one wants (and the law cannot stop the Ground Zero Mosque from being built). One should have the right to pray at work (as long as it doesn’t interfere with job performance or otherwise disrupt the workplace). One should have the right to wear religious garments in the workplace (although Abercrombie and Disney have the right to protect and project the public image that forms the foundation of their companies). Yet, as long as people insist on building a Mosque at Ground Zero, others will feel it’s okay to hurl meat and epithets.

There are no easy answers to these ugly problems. But, it’s not enough simply to say that employers have to cease discrimination. For the healing to begin, and for the discrimination to stop, there also has to be a showing of willingness, participation, and inclusion from the other side of the argument.

---

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

ADA Amendments redefine cancer as a disability

More than two years ago, I criticized a case that dismissed an employee’s disability discrimination claim on the basis that his cancer was limiting enough to qualify as a protectable disability:

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a “disability.” This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me.

I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Hoffman v. Carefirst of Fort Wayne (N.D. Ind. 8/31/10) is one of the first cases decided under 2008’s ADA Amendments. It provides a poignant example of these new definitions in practice.

Stephen Hoffman claimed that his employer, Advanced Healthcare, terminated him because of his Stage III renal cancer (in remission at the time of his termination). In its defense, Advanced Healthcare argued that because Hoffman did not have a physical impairment which substantially limited a major life activity, he was not disabled under the ADA—the cancer was in remission, Hoffman returned to work without restrictions, he carried out his regular job duties of 40 hours a week a full year, and he did not miss any significant work-time.

The court rejected Advanced Healthcare’s argument that it “highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.” Instead, the court concluded:

Because it clearly provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and neither side disputes that Stage III Renal Cancer, when active, constitutes a disability, this Court must find that Hoffman was “disabled” under the ADAAA. In other words, under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman does not need to show that he was substantially limited in a major life activity at the actual time of the alleged adverse employment action.

This case not only serves as an excellent illustration of the problems addressed by the ADA Amendments, but is also shows how difficult it will be going forward for employers to prove that an employee’s medical condition does not qualify as an ADA-disability. If we assume that nearly all medical conditions are “disabilities” (and this assumption is pretty safe), then employers needs to refocus on the interactive process to reach a reasonable accommodation necessary to enable an employee to perform the essential functions of the job. Most ADA cases will now be won or lost on this issue, and it is incumbent on employers to put their best foot forward by appearing to have been as reasonable as possible with disabled employees.

---

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