Courts inch closer to recognizing sexual orientation as a protected class

The Ohio Bell Telephone Company fired Plaintiff Jason Koren after he missed work for his father’s funeral. Koren suspected that Ohio Bell really fired him because he’s homosexual and took his husband’s last name. He sued for gender discrimination. Did the court: a) grant Ohio Bell’s motion for summary judgment because Title VII does not offer protections for sexual orientation; or b) deny the motion because Title VII does protect against the application of unlawful sex-based stereotypes? Give yourself a prize if you answered “b.”

Here’s what the court had to say in Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12) [pdf]:

“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, … as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim…. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII.” …

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

Koren has alleged just such a failure to conform. And he says that [manager] Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination.

Nine out of the last 10 Congresses have tried to pass a version of the Employment Non-Discrimination Act, which among other things, would add “sexual orientation and gender identity” to the list of classes protected under Title VII. It has failed each time. Courts and the EEOC, however, continue to give the LGBT community that which the legislature has rejected.

As for me, I’ll simply repeat the opinion I gave after the EEOC issued its groundbreaking pronouncement on this issue earlier this year:

The time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

WIRTW #238 (the “Doc Hopper” edition)

What does a labor and employment lawyer do to relax on the weekends? If it’s this labor and employment lawyer, and it happens to be the second Sunday in August, the answer is frog jumping (the Valley City Frog Jump Festival, to be precise). Click here for a full recap of my family’s not so stellar, but oh so fun, showing at this year’s event.

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

Discrimination

• Sexual orientation and reverse discrimination — from EmployerLINC
• Harassment complaints by male Homeland Security employees — from Walter Olson’s Overlawyered
• Can a Netflixian Approach to Selection Decisions Eliminate Discrimination? — from Stephanie Thomas’s Proactive Employer Blog
• Employer wins lawsuit despite a "pattern of systematic sexual harassment" — from Eric Meyer’s The Employer Handbook Blog
• Helping Employers Against Employees Who Help Themselves to Company Information to Build a Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Discrimination claims by Muslims on the rise — from California Employment Law
• Employment Litigation: How Much Will You Pay? — from Mark Toth’s Manpower Employment Blawg
• Orders to “Go see the Doc” cost Baltimore County $475,000 — from Employment Discrimination Report
• The EEOC Came Knocking (Part Two): Effective Position Statements — from Suzanne Boy’s Southwest Florida HR Law & Solutions
• Virtually All of The Fortune 500 Companies Voluntarily Prohibit Discrimination On The Basis of Sexual Orientation — from Employment Discrimination Report

Social Media & Workplace Technology

• The Business BYO Craze: Has It Gone Too Far? — from hr bartender
• Use Your Email Signatures to Get Overeager Coworkers Off Your Back — from Lifehacker
• Does the Company or the Employee Own a Twitter Account? — from California Employment Law Report
• Social tools for tracking your employees — from Mike VanDervort’s The Human Race Horses
• CFO firing after Chick-fil-A post shows what's protected and what’s not in social media speech — from Phoenix Business Blog
• How to Use Social Media Evidence in Workplace Investigations — from i-Sight Investigation Software Blog

HR & Employee Relations

• “I Would Like To Extend You A Counter-Offer To Suck My Dick”: A Rejected Jobseeker Sends The Padres The Best Letter Ever — from Deadspin
• Separation Agreement or No Separation Agreement? — from Labor & Employment Law Perspectives
• Criminal Convictions and Arrests - To Hire Or Not To Hire? — from From the Sidebar
• Your employer sucks and isn’t going to change — from Ask a Manager
• My Employer Says I Have To Resign. What Should I Do? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Locking Janitors in Wal-Mart - False Imprisonment? — from Phil Miles’s Lawffice Space

Wage & Hour

• The One In Which I Try to Explain the Joint Employer Test — from Dan Schwartz’s Connecticut Employment Law Blog
• FLSA Lessons from Gordon Ramsay — from Molly DiBianca’s Delaware Employment Law Blog
• Can my boss track my hours? — from Suzanne Lucas, the Evil HR Lady, writing at CBS Money Watch
• Tenth Circuit Upholds Salary Basis (and Thus Exempt Status) Despite Deductions From PTO Bank — from Wage and Hour Law Update
• Overtime and Exotic Dancers — from Alabama Employment Law Report
• Federal Judge Severely Limits Scope of Auto-Deduct Collective Action — from Healthcare Employment Counsel
• Beware the loose thread that can unravel the entire garment — from Mike Maslanka’s Work Matters
• Why You Should Know Your Rights Under FMLA — from Workplace Fairness

Labor Relations

• NLRB Taking Aggressive Legal Positions in Attempt to Remain Relevant — from Russell Cawyer’s Texas Employment Law Update
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Does the Golden Rule Violate Section 7 of the NLRA? — from Labor Relations Institute
• NLRB Sets Sights on “At-Will” Provisions — from Hiring & Firing
• Free Speech is not Protected at Work but Some things you say may be. — from Mike Haberman’s Omega HR Solutions

Piercing the bulletproof employee

Retaliation comes in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute; the latter protects employees who have “opposed any practice made an unlawful employment practice.” Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher’s assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school’s staff was African-American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed “duty[-]free breaks,” while African-Americans were “criticized for taking breaks”—“a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fear can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

The language of the modern workplace

Merriam-Webster's Collegiate® Dictionary just released its list of new words for 2012. Three caught my eye.

According to the publisher, Merriam-Webster adopts new words based on usage:

To decide which words to include in the dictionary and to determine what they mean, Merriam-Webster editors study the language as it's used. They carefully monitor which words people use most often and how they use them….

To be included in a Merriam-Webster dictionary, a word must be used in a substantial number of citations that come from a wide range of publications over a considerable period of time. Specifically, the word must have enough citations to allow accurate judgments about its establishment, currency, and meaning.

Because these words have crept into the American lexicon, they should be accounted for in your workplace policies. Technology policies should cover information stored in and accessed from the cloud. Harassment policies and training should teach employees about the dangers of texting and other co-worker communications via mobile phones, email, and social media. And, if you get into a hot legal mess because you omitted these ideas from your policies, drop a few f-bombs (then call your lawyer).

Don’t forget these 5 security issues in your BYOD policy

BYOD might be the corporate buzz word for 2012. If you’re in the dark, BYOD stands for Bring Your Own Device. It represents employees connecting their own mobile devices to corporate networks, instead of using employer-issued devices. There was a time, not all that long ago, when Blackberry was the mobile device of corporate America. Once iOS and Android started supporting email via Exchange, however, executives started questioning why they needed to carry a work device and a personal device. In short, they wanted their email and Angry Birds wrapped up in one tidy mobile package. Thus, the birth of BYOD. Today, Blackberry is going they way of Betamax, and BYOD is here to stay. I call the iPhone-ification of corporate America.

BYOD, however, is not without its risks. Over at The HR Capitalist, Kris Dunn offers the following sample BYOD Policy (c/o Scott Stone):

We expect each team member to provide their own device – you select it, you buy it, you pick the plan that makes the most sense for you.  Your phone, your phone number, your provider of choice, your contract with the provider

We strongly recommend a “Smartphone” of some type, to ensure you can receive emails or other critical communications on the device.

Our Company will provide you access to your work email address on the device, including assisting you with the setup.

If your device is a “Smartphone”, our company will reimburse you $75 per month to cover all work related communications on the device (email, text, voice, communications, etc).  We expect you to select a plan which can accommodate your business and personal needs for voice and data

If you select a PO Phone (plain ‘ol phone) which lacks the ability to receive and send emails, our company will reimburse you $15 per month for all work related communications

We won’t provide a “company phone” to anyone, preferring to allow you to “BYOD”, and provide everyone maximum flexibility.

If you ever choose to leave the company, take your phone, your number, and your existing agreement with a provider – no hassle, no number change, no problem.

These seven points have one glaring omission—security. The biggest risk that BYOD creates is the seemingly uncontrolled access to your network, both in terms of what information is accessed and take from it, and what happens to that information if a device is lost or stolen. In light of these security risks, any BYOD program should answer the following 5 questions:

1. What devices are permitted? Does BYOD mean any device, or does it simply mean iPhones or Androids? What about iPads or other tablets? Employee-owned laptops? Stick drives and other portable memory?

2. Are you going to mandate passwords or other security-screens on network-connected devices? Employees generally resist having to enter a four-digit pin code every time they turn on their iPhones. Your IT, legal, and risk management departments, however, should require them, since they make it that much harder for someone to access data on a lost or stolen device. If your organization deals in confidential information (e.g., doctors, lawyers, etc.), this requirement is that much more important (and might be mandated by law). Also, your BYOD policy should reference any other policies that address the handling of confidential and proprietary information.

3. What happens when a device is lost or stolen? IT must have the ability to remote-wipe a missing mobile device. Guess what happens, though, if an employee’s first call upon losing a phone is to their mobile carrier? The carrier turns off the device, and your organization loses the ability to remote wipe any data from it. Employees should be told that if they lose a mobile device, their first call should be to IT so that the device can be wiped of any corporate data.

4. Will you ban jailbreaks, roots, and other hacks? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Google Play. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.

5. What happens when an employee leaves? You should not only address what happens with the physical device, but also what happens with the data that lives on the device. You need a protocol to re-acquire or wipe all corporate information on the device. Otherwise, you are putting your confidentiality at risk.

Any successful BYOD program results from a synergy among the C-suite, legal, IT, HR, and risk management. Involve all of these departments to make sure that your BYOD program is successful, and addresses all necessary security issues.

Confidential workplace investigations are under attack … by the EEOC?

Earlier this month, I took the NLRB to task for its holding in Banner Estrella Medical Center that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. Lorene Schaefer, writing at One Mediation, brings us news that the EEOC has joined the fray and is also attacking the confidentiality of workplace investigations.

According to Ms. Schaefer, the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

I’m speechless. Confidentiality is a cornerstone of any thorough and meaningful internal investigation. As one of my readers astutely stated in a comment to my post about the NLRB’s attack on confidentiality:

Permitting folks to talk about the investigation impacts the investigator’s strategy, possible spoliation of evidence by witnesses who now know about the investigation when under normal circumstances we would have at best a pretty good chance of keeping the investigation confidential, interfering with work relationships the more and more people talk about the investigation, the more things become both diluted and exaggerated (remember the game of telephone?), it is so much more than just the word “Confidential.”

The EEOC is supposed to prevent workplace discrimination and harassment. How can it possibly take issue with a key component of the crucial tool employers use to weed out unlawful harassment? This position simply does not make any sense. The EEOC should be championing confidential investigations, not signaling that they constitute a “flagrant” violation of Title VII. Prohibiting employers from keeping workplace investigations confidential will render investigations meaningless. I do not think this is a result the EEOC wants to foster.

WIRTW #237 (the “don’t judge a book by its cover” edition)

One of my earliest law school memories did not occur inside the lecture halls, but instead was a passing meeting in the hallway. I recall noticing a classmate’s turban, beard, and dark complexion, and thinking, “terrorist.” Soon thereafter, when Amardeep Singh and I became good friends, I learned he was a Sikh (and definitely not a terrorist). My initial reaction to seeing Amar for the first time embarrasses me to this day.

When I heard the news on Sunday about the tragedy in Wisconsin, I immediately thought of my old friend, who, after law school, co-founded the Sikh Coalition and currently serves as its National Director of Programs. Earlier this week, The Guardian ran a poignant piece written by Amar, entitled The post 9/11 prejudice that menaces American Sikhs. This is part of what he said:

Fed a steady diet of Bin Laden and Taliban images, most Americans simply associate the turban, which Sikh men wear as an expression of faith, with terrorism. Turban equals terrorist in the minds of too many.

In part, Sikh Americans are collateral damage of a modern climate that rarely has time for explanations of our culture, our heritage, and our beliefs. This enduring legacy of 9/11 continues to stubbornly attach itself to our community. Not only do many people not know of the peaceful beliefs of our faith, but they wrongly associate us with acts of unspeakable terrorism….

We all deserve to live in a society where no one need fear violent attack—whether at a temple, mosque, synagogue or church—simply because of our ethnic and religious identity.

As a society (especially one that calls itself a melting pot), we should not need an excuse to confront our own biases and prejudices. This awful catastrophe reminds us that we should view people as people, and not as colors, religions, or stereotypes.

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

Discrimination

• Facebooking about "naked Twister" may doom one's sexual harassment claims — from Eric Meyer’s The Employer Handbook Blog
• Some Employers Health Plans Deny Pregnancy Coverage For Dependents — from TLNT
• Three New High-Visibility Lawsuits—Seven Types of Alleged Discrimination — from Employment Discrimination Report
• Construction worker too “manly” to win same‑sex harassment claim — from EmployerLINC
• “Court Revives Discrimination Lawsuit against … the EEOC” — from Walter Olson’s Overlawyered
• When the EEOC Goes Too Far--Part II — from Molly DiBianca’s Delaware Employment Law Blog
• Can I Be Fired for Being Gay? — from Jessica Miller-Merrell’s Blogging4Jobs
• Getting ADA accommodations right from the very beginning — from HR Cafe
• Chick Fil-A and the Trickle Down Effect — from Tim Eavenson’s Current Employment
• The EEOC Came Knocking (Part One): What Should I Do? — from Suzanne Boy’s Southwest Florida HR Law & Solutions

Social Media & Workplace Technology

• Will the Chick-fil-A YouTube firing pass legal muster? — from Robin Shea’s Employment and Labor Insider
• Facebook says 'Likes' fall under free speech, supports sheriff fired over political controversy — from The Verge
• Chris Rock: Social Media Disasters Only Matter If Your Fans Care — from Kashmir Hill’s The Not-So Private Parts
• Facebook And Twitter Subpoenas, Privacy And The Law — from From the Sidebar

HR & Employee Relations

• HR’s Same-Sex Marriage Policy — from Tim Sackett at Fistful of Talent
• “Ascent of the A-Word” — from Bob Sutton
• I don’t talk about my sex life at work — from Mike VanDervort’s The Human Race Horses
• Forced to resign: What are your options? — from Evil HR Lady, Suzanne Lucas
• Mergers & Acquisitions: Don't Forget About Employee Compliance with Nondisclosure Agreements — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• It Will Cost Me How Much? A Story of Misclassification and Improper Deductions — from Mike Haberman’s Omega HR Solutions
• Third Circuit Defines “Joint Employment” Under FLSA — from Phil Miles’s Lawffice Space
• What Is the Minimum Value of Work? — from Jim Brennan at Compensation Cafe
• Fourth Circuit: CEO's Administrative Assistant Properly Classified As An Exempt Administrative Employee — from Wage and Hour Law Update
• Litigation Over Unpaid Internships Under the FLSA Heats Up — from Workplace Prof Blog
• Employers Violating Overtime Laws On The Rise — from Overtime Lawyer Blog
• Seventh, Third Circuits Reach Opposite Conclusions in FMLA Cases — from Joe’s HR and Benefits Blog

Labor Relations

• Employers must be able to recognize a Weingarten request in order to avoid liability under the NLRA — from Employment Law Matters
• NLRB Decision Complicates Investigations in the Workplace — from Labor Relations Update

Richard Kimble and the ADA

Lt. Philip Gerard: Why don’t you stop running and turn yourself in, Kimble?

Dr. Richard Kimble: There’s a man I have to find. A one-armed man. When I find him, I’ll turn myself in.

Lt. Philip Gerard: Still sticking to that same tall tale? “A one-armed man killed my wife.” The truth is … you’re guilty not only in my eyes, but in the eyes of the law.

– The Fugitive (1965).

In Rosebrough v. Buckeye Valley High Sch. (6th Cir. 8/8/12) [pdf], the 6th Circuit concluded that an individual born without a hand was qualified under the ADA to work as a bus driver trainee.

Here are the facts. Tammy Rosebrough, born without a left hand, applied for cook’s position at Buckeye Valley North High School. During the interview process, a supervisor told her that if she was interested in a position the school was in desperate need of bus drivers. Rosebrough applied for the bus driver job. The Ohio Department of Education requires a waiver before an individual missing a limb is allowed to operate a school bus, for which Rosebrough also applied. While she was waiting to receive her waiver, the school district began Rosebrough’s training. Perceiving bias against her because of her missing hand, Rosebrough never finished her training, and ultimately sued for disability discrimination.

The Court never reached the issue of whether the school district discriminated against Rosebrough on the basis of her disability. Instead, it reversed the trial court’s determination that she was not “qualified” to work as a bus driver trainee, and remanded the case to be decided on the remaining issues.

The plain language of the ADA covers discrimination on the basis of disability during job training…. The statutory inclusion of “job training” protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.

When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver…. It is unnecessary to speculate as to whether she was “otherwise qualified” for the training position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’ was in fact a ‘trainee,’ and was given the training.”

In other words, the Court did not permit the school district to argue that Rosebrough wasn’t qualified to work as a bus driver training because it permitted her to train for the position.

The odds are slim that you will have a one-armed applicant seeking to drive one of your commercial vehicles. Yet, the lesson from Rosebrough is much broader. Allowing an employee to work in a position makes it difficult to argue later that the employee was not qualified for that same position.

Do your agreements provide for waivers of collective actions?

Earlier this year, KeHE Distributors underwent a reduction in force. It offered a retention bonus to any sales representatives who would continue their employment for a period of time, as long as they signed a Separation and Release Agreement. Each Agreement contained a “General Release of Claims and Covenant Not to Sue,” which included a promise not to join “any class or collective action” against KeHE arising under the FLSA or other federal laws. 69 employees accepted the retention bonus and signed the agreement. Within weeks, two employees launched collective actions under the FLSA claiming that KeHE unlawfully denied them overtime compensation. In Killion v. KeHE Distribubtor (N.D. Ohio 8/3/12) [pdf] the Court dismissed from the lawsuit any employees who had signed the Agreement.

The plaintiffs argued that because of the relatively small amount of money at stake in any individual wage and hour claim, preventing employees from joining collective actions would gut their substantive rights under the statute. The court, however, disagreed:

This Court recognizes that the ability to form a collective action necessarily implicates policy considerations regarding the enforcement of the FLSA. Because the amount of money at stake may be small, the right to join a larger pool of similarly situated individuals enables the pool to attract counsel who, if victorious, is entitled to recover fees….

Here, this Court has no idea how much money is at stake…. Nor does the record disclose how many potential Plaintiffs would comprise the collective action, whether Plaintiffs can afford to pursue their claims individually, or how much it would actually cost them to pursue individual claims. Moreover, attorneys’ fees are mandatory…, which means individual Plaintiffs will still be able to vindicate their rights under the FLSA….

The statute permits a collective action, but it does not require one…. Section 216(b) is clear: Plaintiffs may proceed collectively, not shall. By signing the Agreement they waived that right.

Simple enough, right? An employee is permitted to waive his or her right to file or join a collective action under the FLSA. Killion involved a separate agreement signed as part of a reduction in force. This rule, however, is not limited to post-employment covenants. The same rationale would apply to employment agreements, or other pre-employment documents such as employment applications, offer letters, or other documents signed by an employee incidental to his or her employment.

Of course, Killion is but one opinion of one district court, and this issue is unsettled enough to warrant some cautious deliberation. Before embarking on a campaign to require that your employees sign away their participation in collective actions, you might want to wait for the 6th Circuit to have its say on the issue.

Telecommuting as a reasonable accommodation

More than two years ago, I hypothesized that the breadth of the ADA’s 2009 amendments would likely cover fringe medical conditions such as chemical sensitivities. I wrote:

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity…. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

Core v. Champaign County Board of County Commissioners (S.D. Ohio 7/30/12) [pdf], confirms my prediction. In that case, an Ohio federal court ruled that an employee sufficiently pleaded a claim for disability discrimination under the ADA based on an alleged sensitivity to perfume. The plaintiff, Pamela Core, claims that her employer failed to accommodate her chemical sensitivity to certain perfumes worn by her co-workers. She had asked that her employer ban certain scents in the workplace. When it ignored her requests, she asked to be allowed to work from home as an accommodation, which the employer rejected.

The issue of whether a sensitivity to perfume qualifies as a disability protected by the ADA only begs this question—what is the appropriate accommodation for this disability? The court in Core concluded that telecommuting may be a reasonable accommodation in this case:

With regard to the assertion that working from home is an unreasonable accommodation as a matter of law, such blanket assertion is not necessarily supported by Sixth Circuit precedent. Certainly, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home[;]” however, the court also recognizes the possibility of exceptions to the general rule “in the unusual case where an employee can effectively perform all work-related duties at home[.]”

Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable…. Today, in this Court’s view, it may not “take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.” Nevertheless, the ultimate determination of reasonableness is a fact specific inquiry and a question for the fact-finder.

The Court did not go as far to conclude that telecommuting is a proper reasonable accommodation in this or any other case, but instead ruled that a jury should decide the reasonableness of the accommodation in this case.

Some employers, rightly or wrongly, believe that employees need to be present in the workplace to effectively perform their jobs. If you fall on this side of the debate, what steps can you take to safeguard against a court second-guessing your decision to deny a telecommuting request as a reasonable accommodation?

1. Prepare job descriptions that detail the need for time spent in the office.
2. Document the cost of establishing and monitoring an effective telecommuting program.
3. Engage in a dialogue with disabled employees to agree upon an alternative accommodation with which both sides can live.

The appropriateness of telecommuting as a reasonable accommodation will vary from case to case. As Core points out, telecommuting as a reasonable accommodation remains the exception, not the rule. The line that separates exception from rule, however, will continue to shift as technology makes telecommuting more feasible, widespread, and accepted.

[Hat tip: Employer Law Report]

Does a "good faith belief" about an illegal pay practice support an FLSA retaliation claim?

April Hurd worked as a nurse’s aide for Blossom 24 Hour We Care Center. The company fired her 10 days after she complained about unpaid overtime. Easy case for the employee? If you think this is an open and shut case of retaliation under the FLSA, you are mistaken.

In Hurd v. Blossom 24 Hour We Care Center, Inc. (Ohio Ct. App. 8/2/12) [pdf], the court quickly disposed of Hurd’s retaliation claim:

There is no evidence that Hurd engaged in protected activity by requesting overtime. The U.S. Supreme Court has held that home health care workers are not entitled to overtime compensation because they constitute FLSA-exempt “domestic service” employees. Thus, because Hurd is exempt, her request for overtime did not constitute a protected activity. 

Should this case have been this simple? In Title VII retaliation cases, there is a long-standing rule that an employee engages in protect activity by opposing an alleged unlawful employment practice with a reasonable a good-faith belief that the employer has violated Title VII. Some courts have extended this rule to retaliation cases brought under the FLSA.

If an exempt employee has a good faith belief that he or she is not exempt and complains about missing overtime pay, shouldn’t that employee receive the same benefit as an employee complaining about an alleged unlawful employment practice under Title VII? Shouldn’t the employee’s good faith belief in the perceived illegality be put to the test?

What is the lesson for employers? Despite the ruling in Hurd, if an employee you have classified as exempt complains about overtime pay, do not assume it is safe to retaliate. The court deciding that employee’s case might not be as generous as the court was in Hurd.

WIRTW #236 (the “reactions” edition)

Wednesday’s post dissecting the NLRB’s attack on confidential workplace investigations received a lot of feedback, on Twitter, in various LinkedIn groups, and in the comments. Here’s two of the best:

The best comment, however, came via email from a reader who has asked to remain anonymous:

In its attempt to stay relevant, the NLRB has revealed how very out of touch it really is.

I couldn’t have said it better myself (and thanks to everyone for contributing to the discussion).

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

Discrimination

• Recent Religious Discrimination Cases: Thou Shalt Train Recruiters About Religious Discrimination — from Employer Defense Law Blog
• Is Obesity Now a Disability Under the ADA? — from Hiring & Firing
• “An employee walks into a hospital wearing a Jesus lanyard…” — from Eric Meyer’s The Employer Handbook
• Whoa Baby! Managing pregnancy in the workforce — from Employer Legal Advocate
• ABC, 123, EEOC and Pregnancy Discrimination — from The Proactive Employer Blog
• Marissa Mayer’s Pregnancy: An Interesting Window into Women, Pregnancy, and the Workplace — from Jason Shinn’s Michigan Employment Law Advisor
• When the EEOC Goes Too Far — from Molly DiBianca’s Delaware Employment Law Blog
• Fifth Circuit Rejects Case Asserting Sex-Stereotyping Theory of Sexual Harassment — from Russell Cawyer’s Texas Employment Law Update
• Sexual Harassment is more than Innocent Fun — from Mike Haberman’s Omega HR Solutions
• Five sure-fire ways to get an age-based harassment complaint — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• Fourth Circuit Adopts “Narrow Reading” of Authorization under the Computer Fraud and Abuse Act — from Trade Secrets and Noncompete Blog
• Social Media Lessons from the 2012 Olympics — from i-Sight Investigation Software Blog
• How the Right Social Media Strategy Now Will Help You in a Crisis Later — from Social Media Today
• “Facebook Firing” Claims Under State Law Too — from Social Media Employment Law Blog
• Stop Trying to Micro-Manage Employees’ Use of Social Media — from Chris McKinney’s Texas Employment Law Blog
• Inside The Mind Of A Person Who Stalked A Female Co-Worker — from Kashmir Hill’s The Not-So Private Parts
• Top 10 Guidelines for Social Media Background Checks — from ere.net
• Illinois Enacts Social Media Privacy Law — from Shear on Social Media Law
• A Guide to F**king Up in the Digital Age — from Lifehacker
• Is Social Media Use @ Work Dropping? — from Mark Toth’s Manpower Employment Blawg

HR & Employee Relations

• How Do I Deal With Unwelcome Questions About My Down Syndrome Son? — from Evil Skippy at Work
• I Swear Because I Care — from Jason Lauritsen
• Use the Chik-Fil-A Mess to Teach Your Employees About Freedom of Speech — from The HR Capitalist, Kris Dunn
• Distraction or Stress Reducer? Why a Dog-Friendly Workplace Might Work — from TLNT
• 6 Tips For Asking Terminated Employees To Leave the Workplace Immediately — from Minnesota Employer
• Top 10 tips for conducting an effective sexual harassment investigation — from HR Hero Line
• I don’t like how you smell—you’re fired! — from EmployerLINC
• The Catch-22 of Criminal-Background-Check Guidance — from Human Resource Executive Online
• Bill Would Generally Ban Pre-Employment Criminal History Inquiries — from Washington D.C. Employment Law Update

Wage & Hour

• Chart of FLSA Claims by Year - It's a New Record! — from Phil Miles’s Lawffice Space
• Individual employees can privately settle FLSA claim without court/DOJ approval, rules 5th Circuit — from Mike Maslanka’s Work Matters

Labor Relations

• NLRB Seeks Feedback on Backpay Award Questions — from Labor Relations Counsel
• NLRB Acting General Counsel Begins Attack On At-Will Policies — from Wyatt Employment Law Report
• Ignoring it Doesn’t Make it Go Away: What Non-Union Employers need to know about the NLRA — from Fistful of Talent
• Court Reaffirms Ruling Striking Down NLRB’s “Quickie Election” Rules — from Labor Relations Today
• New “Union-Relations” Privilege Recognized — from LE Blog

How late is too late for an FMLA medical certification?

Under the FMLA, an employee requesting leave for a serious health condition must provide a medical certification for the leave upon request by the employer. The employee has 15 days to return the requested certification, unless it is not practicable to do so under the particular circumstances. If an employee fails to provide certification, the employer may deny the FMLA leave.

What happens, however, if an employee returns the requested medical certification late—after the expiration of the 15-day time limit? According to the Northern District of Ohio, in Kinds v. Ohio Bell Telephone Co. (7/30/12) [pdf], an employer can lawfully deny FMLA benefits when an employee submits the medical certification beyond the 15-day deadline, even if the employee only misses it by a short amount of time.

Ohio Bell’s decision to deny Kinds FMLA coverage due to untimely certification is justified…. In spite of ample notification by Ohio Bell, Kinds did not submit certification by the 13th…. Ohio Bell would have been justified in denying coverage for this failure alone, but the company nonetheless granted Kinds an extension. Kinds failed to submit certification by the January 27, 2010, deadline as well. Finally, on February 16, 2010, Kinds submitted the medical certification, but it failed to provide an explanation—a request made by FMLA Operations as a condition for giving Kinds a third extension—as to why she failed to submit certification earlier. As a matter of law, it cannot be said that Ohio Bell’s refusal to accept Kinds’s twice late and still inadequate certification—submitted one month past the FMLA required 15-day period—constituted interference with Kinds’s FMLA rights.

To sum up:

• How late is too late for an employee to submit a medical certification to support a request for FMLA leave? One day.
• Can you extend the 15-day period and accept a late certification? Yes.
• Do you have to? No.

A letter to the NLRB on its latest position against confidential workplace investigations

Dear National Labor Relations Board,

You and I have not always seen eye to eye, especially on the issue of protected concerted activity. You might think I’m out to get you. I’m not. I just want to make sure that you fully understand the real-world implications of the rules you are making. For example, take your latest target: workplace investigations.

In Banner Estrella Medical Center [pdf], you concluded that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity:

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights…. Respondent’s generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.”

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel.

One sure-fire tool one can use to figure out who’s telling the truth and who’s lying is to see how everyone’s stories jive or contradict. For this reason, one of the key instructions that should given in any workplace investigatory interview is that the employee should keep everything said confidential. That way, later interviewees will not be influenced, and do not have an opportunity to compare (and prepare) their stories. 

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

NLRB, I implore you to consider the real-world implications of your rulings on protected concerted activity. Halting confidential workplace investigations serves no one’s interest, including the employees you are sworn to protect.

Very truly yours,

 

Jon Hyman

“Bitch” as sexual harassment: context matters (sort of)

Bitch (n): 1) A lewd or immoral woman; or 2) a malicious, spiteful, or overbearing woman—sometimes used as a generalized term of abuse.
– Merriam-Webster Online Dictionary

According to a recent survey, half of all employees swear on the job. Passananti v. Cook County (7th Cir. 7/20/12) answers the question of whether there exists a line between swearing as workplace banter and swearing as unlawful harassment.

After losing her job as a deputy director with the Cook County Sheriff’s Department, Kimberly Passananti sued, claiming that her director had subjected her to sexual harassment by calling her a “bitch” on “numerous occasions” over a “progressive period of time.” A jury awarded Passananti $4.2 million in damages, of which $70,000 was compensation for the sexual harassment. The trial court set aside the entire verdict. The 7th Circuit reinstated the verdict on the sexual harassment claim.

The Court started its analysis of whether the use of the word “bitch” constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:

We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.

The Court concluded that even though “bitch” is sexually based, its use must be examined in context to determine whether it constitutes harassment “because of sex.”

We do not hold that use of the word “bitch” is harassment “because of sex” always and in every context…. [T]he use of the word in the workplace must be be viewed in context…. But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word “bitch” must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment….

Whether its use is sufficient evidence of actionable sexual harassment is, of course, another matter. As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “[c]ommon sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

In other words, “bitch” is sufficiently gender-specific such that in most cases a jury should apply its common sense to determine whether the pejorative use of the word towards a female employee constitutes harassment because of sex.

In the day-to-day management of your employees, however, you should not get bogged down in legal minutia whether one employee calling another employee a “bitch” is actionable sexual harassment. If an employee complains that he or she is being called vulgarities or other offensive names, you have only one option—investigate and take appropriate corrective action.

[Hat tip: Judy Greenwald at Workforce]

More on educating your employees about being “profersonal”

Earlier this morning, I wrote about the confluence of our professional and personal personas, and the need for employers to educate employees about the importance of maintaining a proper online image. How do you go about engaging in this education? The U.S. Olympic Women’s Soccer team provides a great example.

Goalie Hope Solo took to Twitter (where else) to criticize media coverage of her team’s defensive play after their 3-0 win Saturday against Colombia.

Instead of disciplining Solo, coach Pia Sundhage sat her down and talked to her about the importance of her online image. Per ESPN:

“We had a conversation: If you look at the women’s national team, what do you want (people) to see? What do you want them to hear?” Sundhage told reporters at the team hotel. "And that’s where we do have a choice—as players, coaches, staff, the way we respond to certain things.”

Thank you Coach Sundhage for providing a perfect epilogue to my post from earlier this morning.

Does your social media policy educate about being “profersonal?”

Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. Last week, Greek Olympian Voula Papachristou got a quick and dirty lesson on being profersonal. Greece removed her from its Olympic team over a tweet mocking African immigrants. Here’s the offending tweet:

According to The Huffington Post, the Hellenic Olympic Committee subsequently “banned all Greek athletes from using social media to express any personal opinions not related to the Olympics and to the preparation for their competitions.”

Voula’s story is a perfect illustration of the disappearing line between the professional and the personal online. If an employee doesn’t want something they say online to affect their employment, they shouldn’t post it. We can debate whether an employee should lose his or her job for something non-work-related he or she posts on his or her personal time. If, however, someone can connect an employee to his or her place of employment through an online profile, what is posted becomes fair game for an employment decision.

The takeaway might simply be that employers remind their employees to “be professional” online, and that businesses will hold employees accountable for what they post that could cast the company in a bad light. Amazingly, however, the NLRB might take issue with such a policy.

In his latest missive on workplace social media policies, NLRB Acting General Counsel Lafe Solomon passed judgment on the following neutral provision in an employer’s social media policy:

Remember to communicate in a professional tone…. This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion.

Mr. Solomon concluded that such a policy, which merely reminds employees “to communicate in a professional tone,” unlawfully restricts employees’ rights to engage in protected concerted activity:

We found this rule unlawful…. [R]eminding employees to communicate in a “professional tone,” the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial. Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.

What’s the real lesson here? Social media is an evolving communication tool. Employees have not yet figured out what it means to be “profersonal.” Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world, even at the risk of offending the NLRB’s prickly sensitivities.

WIRTW #235 (the “exciting announcement” edition)

The Employer Bill of Rights remains one of my most popular posts. In fact, it’s so popular it got its own book deal. All joking aside, I am very proud to announce that I have been hard at work on my second book, The Employer Bill of Rights. Since I just received the cover art, I figured now is as good a time as any to break the news. Apress will publish the book by year’s end. I’ll update with links to Amazon and other points-of-sale when they go live (which I’m told will be soon).

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

Discrimination

• Dear Evil Skippy: Can I Ask My Employee If She’s Pregnant? — from Evil Skippy at Work
• Fact or Fiction: The ADA requires creating a new job for a disabled employee — from Eric Meyer’s The Employer Handbook Blog
• Employer Best Practices for Analyzing Whether Leave Beyond FMLA is an “Undue Hardship” under the ADA — from Jeff Nowak’s FMLA Insights
• The EEOC And Wellness Programs — from Hunton Employment & Labor Law Perspectives™
• What Do Your EEO-1 Reports Tell the EEOC and OFCCP About Your Company? — from Employment Law Matters
• How Do I Prove I’m Paid Less Than My Male Co-Workers? — from Donna Ballman’s Screw You Guys, I'm Going Home

Social Media & Workplace Technology

• Yammer’s Social Media Policy — from Slideshare
• A True Story about Discovery of Old Tweets In Litigation — from Delaware Employment Law Blog
• Stop Worrying About Employees’ Use of Social Media — from i-Sight Investigation Software Blog
• Finally, Facebook Can be an Employer’s Friend, too — from Michigan Employment Law
• Is it OK to spy on your employees? — from Social Media Today
• Why “rude” emails are the price we pay for social media — from The Verge
• Everything You Need to Know About OS X Mountain Lion — from Lifehacker

HR & Employee Relations

• Using Criminal Background Checks in the Hiring Process; Handle With Care — from Dan Schwartz’s Connecticut Employment Law Blog
• Twisting SHRM Background Check Findings — from employeescreenIQ Blog
• What “Ted” Can Teach Managers and Entrepreneurs About Hiring & Firing — from TLNT
• Mother May I … Work AND Be A Mom? — from Fistful of Talent
• Phrases That Will Get You Fired, Maybe, It All Depends — from Mike Haberman’s Omega HR Solutions
• Dirty Words Can Cost You a Promotion — from Forbes
• Pooch Power: What Dog-Friendly Workplaces Can Do For Your Business — from Fast Company

Wage & Hour

• Seyfarth Shaw Study Shows Increase in Wage and Hour Labor Suits — from Law.com
• Former Unpaid Intern’s Lawsuit Gets Approval For Class Action Status — from TLNT
• For Temp Workers, “Temp” Looking More Permanent — from NPR’s Morning Edition

Co-worker complaints about revised schedules may not be enough to create undue hardship for religious accommodation

Four days after the University of Tennessee, Knoxville, hired Kimberly Crider, she informed her supervisor that she was a Seventh Day Adventist, which precluded her from working from sundown Friday through sundown Saturday. Crider’s job responsibilities included monitoring an emergency cell phone on a rotating basis during weekends. When Crider’s co-workers refused to exchange shifts to accommodate her, the university determined she was unable to fulfill her job duties and terminated her. As you would guess, Crider sued, claiming religious discrimination under Title VII.

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 poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business. In Crider v. University of Tennessee, Knoxville (6th Cir. 7/23/12) [pdf], the 6th Circuit applied these principles and concluded that a jury should decide whether the university lawfully refused to force its employees to change shifts to accommodate a co-worker’s religion.

UTK insists that requiring its employees to work Saturday shifts every other weekend would have created an undue hardship for Crider’s former co-workers…. UTK … insist[s] that a significant effect on a co-worker will suffice to establish an undue hardship…. Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.”

The Court concluded that “employee dissatisfaction or inconvenience alone” does not create an undue hardship. Instead, “it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.”

According to the EEOC, “It would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts.” Some might argue that this case undercuts the EEOC’s position. In reality, I think that the employer simply failed to prove the undue hardship with actual facts and data relative to its operations.

If you are planning on rejecting an employee’s request for a shift change as a religious accommodation, you must be able to support the claim of hardship with facts.

• How does it impact your scheduling?
• Do you have to hire additional staffing to cover for the missed shifts?
• How much would it cost you in added overtime or other premium wages?
• How often would you have to pay overtime or other premium wages?

Without providing answers to these questions, you will be hard-pressed to prove that a shift swap creates an undue hardship.

FMLA guarantee of reinstatement is never absolute

When an employee returns from FMLA leave, that employee is entitled to be reinstated to the same or equivalent position he or she held prior to the leave. As Winterhalter v. Dykhuis Farms (6th Cir. 7/23/12) [pdf] illustrates, however, that right to reinstatement is never guaranteed. 

Dykhuis Farms terminated Winterhalter’s employment on the day that Winterhalter was scheduled to return from FMLA leave, allegedly due to economic hardship and Winterhalter’s status as the highest-paid and lowest-performing of the workers in his unit. The court concluded that despite the fact that he was fired on the day he returned from leave, his employer neither retaliated against her nor interfered with her job restoration rights under the statute. The farm came forward with well-documented evidence that its economic hardship and its need to take "drastic measures to improve its financial performance,” motivated the termination, not Winterhalter's FMLA leave.

As the 6th Circuit correctly pointed out, the FMLA's reinstatement "provisions do not create a greater right to reinstatement or protection against termination than the employee would receive if he had not taken FMLA leave. Therefore, an employer may dismiss an employee who has taken FMLA leave, but only if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

Notifying an employee of a termination the day he or she returns from FMLA leave is a risky proposition. It will likely draw a lawsuit. The key to winning the lawsuit is having a legitimate and documented reason to support the termination. In this case, it was economic hardship. In others, it could be the discovery of serious performance deficiencies. Despite the FMLA's job restoration guarantee, you can terminate an employee who is out on an FMLA leave. You just have a really good reason, and you have to be able to back it up.