Sticks and stones may break my bones...

As long as harassment has been illegal, the lynch pin of its unlawfulness has always been the protected characteristic of the person being harassed. Harassment in and of itself is not unlawful, but instead harassment because of sex, race, age, religion, disability, national origin, etc. The Supreme Court has long made it clear that the employment discrimination laws are not a "code of general civility." Legislative pushes in 13 different states are attempting to change that to make general workplace bullying illegal. There are even two different organizations promoting these legislative efforts, bullybusters.org and bullyinginstitute.org. Bullybusters identifies itself as the "National Coordinators of U.S. State Legislative Initiatives to Stop Workplace Bullying." The purpose of these bills is to extend protection to all employees from abusive work environments regardless of protected group status. Thankfully, Ohio is not one of these states (yet). It would be an understatement to say that these laws, if passed, would hamstring the ability of companies to manage their workforces. Anti-bullying laws could also provide a death-blow to employment at-will by eliminating protected classes. It would not be a stretch to imagine an employee suing for constructive discharge as a result of being bullied.

Nevertheless, because this issue is perceived to be an epidemic, it is one that could achieve a groundswell of popular support. According to a March 2007 survey conducted by the Employment Law Alliance, 44% of workers claim to have been bullied on the job, and an astounding 64% feel they should have the right to sue if bullied. Only 16% could emphatically say that those bullied should not be able to sue. The survey lists specific examples of perceived workplace injustices that employees report as "bullying":

1. Making sarcastic jokes or teasing remarks (60%)
2. Criticizing performance in front of others (59%)
3. Interrupting in a rude manner (58%)
4. Giving a dirty look (56%)
5. Raising one's voice or yelling (55%)
6. Deliberately ignoring (54%)
7. Making personal insults (50%)
8. Demeaning or embarrassing comments in person or by email (40%)
9. Spreading rumors or inappropriately sharing confidential information (40%)
10. Making inappropriate physical contact (17%)
11. Physically threatening (11%)

Robert Sutton, Professor of Management Science and Engineering in the Stanford Engineering School, published an entire book on this topic, The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't. According to Professor Sutton, there are a dozen common, everyday tools bullies use, a list that closely mirrors the incidents of bullying reported in the Employment Law Alliance survey.

This movement is frightening. Readers of this blog know that I am a strong advocate of employers treating employees fairly. Fair treatment, that is, treating employees the way you would want to be treated if you were in their shoes, is the best proactive approach employers can take to avoid litigation. But, do we really need laws that make it illegal for a manager to be a jerk. We are creating a society of wusses. It's ridiculous that kids can't play dodgeball anymore because the less athletically gifted might get hurt (lest anyone prejudge my biases, I was the kid in the middle of the circle getting pounded by red rubber balls). It's just as ridiculous that a manager cannot throw a tantrum, justified or not. Bosses come in all shapes and sizes, and have varying degrees of "touchy-feeliness." Those that cannot handle working for a bullying boss will find work elsewhere, and the companies that tolerate or foster these types of managers will be left with a revolving-door workforce that ultimately hurts the bottom line. Bullying, however, is not akin to the historic, invidious, systemic discrimination that needs legal intervention to remedy. Let us all hope that common sense prevails and this movement dies a quick death.

U.S. Supreme Court limits pay discrimination claims

Today, the United States Supreme Court, in Ledbetter v. Goodyear Tire & Rubber Co., ruled in a 5-4 decision that in cases alleging discrimination in pay, the federal statute of limitations begins to run when the pay-setting decision is made. Thereafter, an aggrieved employee has only 180 days or 300 days (depending on the particular state) in which to file an EEOC charge, or forever be time barred from challenging the discriminatory pay setting decision under federal law.

In Ledbetter, Lilly Ledbetter, an 19-year Goodyear employee, alleged that Goodyear had discriminatorily denied her raises throughout her tenure, because of her sex and in violation of Title VII. She filed her EEOC charge well in excess of 180 days past the last denial of a raise. Ledbetter did not claim that the relevant Goodyear decision makers acted with discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Instead, she claimed that her charge (and therefore her lawsuit) was timely because each paycheck she received with the allegedly discriminatory pay rate was, in and of itself, an act of discrimination for purposes of challenging the long-ago decisions. Thus, each paycheck was unlawful because each would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period and during her entire tenure. Thus, according to Ledbetter, her 1998 rate of pay was unlawful because it carried forward the effects of the prior 18 years of uncharged discriminatory pay decisions. The District Court agreed with her and permitted her claim to proceed to a jury, which awarded her more than $3 million in back pay, compensatory, and punitive damages.

The Supreme Court, however, overturned that decision, and in doing so diverged with the vast majority of the appellate courts that have looked at this issue. Writing for the majority, Justice Alito opined that “current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.” According to the Court, its narrow reading of the statute of limitations "reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation."

Ohio is a deferral jurisdiction, so employees in this State have 300 days to file EEOC charges of discrimination. This case has important implications under federal employment discrimination law, because a charge of discrimination is a prerequisite for the filing of any lawsuit under Title VII. I question, however, the overall effect this decision will have on companies that do business in Ohio. Under Ohio law, an employee can bypass the Ohio Civil Rights Commission and the EEOC and simply institute a private cause of action under Ohio Revised Code 4112.99 for all acts of discrimination. Such lawsuits have an astounding 6 year statute of limitations for all forms of discrimination, except age discrimination, which has a 6 month statute. This statute of limitations and the lack of any administrative exhaustion is one of the few areas where Ohio law differs from its federal counterpart. Until the Ohio legislature closes this anomaly, local businesses will probably not feel much effect from Ledbetter.

Jury hits Kohl's big in "family responsibility discrimination" case

To help drive home yesterday's post about family responsibility discrimination, a Cuyahoga County jury today awarded a former assistant manager for Kohl's Department Stores $2.1 million. The plaintiff, Teresa Lehman, claimed that she was discriminated against because of her parenting role for her two young children. According to the Cleveland Plain Dealer, the evidence at trial showed that in "two-month period, five store-manager jobs went to less-experienced and less qualified men than Lehman, or to women with no children or women who assured their bosses that they would have no more children." At the same time, Lehman, who had previously been told by her bosses that she was manager material and on track for a promotion, was passed over and transferred to less desirable stores. Witnesses testified at trial that Lehman's bosses asked her questions such as: "You're not going to get pregnant again, are you," "Did you get your tubes tied," "I thought you couldn't have any more kids," "Are you breast feeding," and "Are you having any more kids?"

In a lesson that all employers should take to heart, the Plain Dealer quotes juror Linh Duong's explanation of the panel's sentiments: "I think she was very poorly treated because she was pregnant, because she wanted to have a family."

This stunning success for Teresa Lehman will further underscore for employees and plaintiffs' lawyers that judges and juries will not give a free pass to employers whose decisions exhibit an intent to discriminate against women who want to work and have a family at the same time. I wrote yesterday that this type of discrimination should be a lesson in HR 101. Companies need to pay careful attention to verdicts such as this one. This issue bears close watching, as it appears it will be a hot button issue in employment law for the foreseeable future.

Is Failing to Promote a Work/Life Balance Actionable Discrimination?

If you scour Federal and Ohio anti-discrimination laws, you will not find “caregiving” as a protected characteristic. Yet, according to the EEOC’s May 23, 2007, Enforcement Guidance, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, employers that disparately treat employees who have caregiving responsibilities may be guilty of actionable discrimination. 

According to the EEOC, the Guidance is intended to address the connection between caregiving roles, such as motherhood, and employment discrimination. It does so, not by creating “a new protected category,” but by illustrating “circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The EEOC’s intention is to clarify “how the federal EEO laws apply to employees who struggle to balance work and family,” says EEOC Vice Chair Leslie E. Silverman. This form of discrimination is being referred to as “family responsibility discrimination” (or “FRD”).

As examples of family responsibility discrimination, the EEOC provides a 27-page laundry list that should be HR 101 for all but the most myopic of employers:

• Asking female applicants, but not male applicants, if they have children (sex discrimination); 
• Making derogatory comments about a female employee after she becomes pregnant (sex discrimination); 
• Quizzing a female job applicant on how she would handle her job and her family at the same time (sex discrimination); 
• Forcing pregnant employees to take unpaid leaves of absence (sex/pregnancy discrimination); 
• Refusing to permit a male employee to take permissible paternity leave, or denying a request for part-time status to enable one’s wife to return to work full-time, because it is not “masculine” (sex discrimination); 
• Permitting a white employee time off to care for an ill child, but not a black employee (race discrimination); 
• Failing to hire an employee who has to care for a disabled child (disability discrimination); 
• Repeated negative comments about breastfeeding, motherhood, or pregnancy (sexual harassment).

As a relatively new dad, I can personally report that caregiving is largely the mom’s role, (although we enlightened 21st century dads try to do our fair share). Be that as it may, companies that are not flexible in accounting for that caregiving role of their female employees are losing and will continue to lose good employees. For companies to retain those employees, they will have to become flexible so that working moms do not have an incentive to leave the workforce. One would think that businesses would self-correct to ensure against losing good employees. The fact that the EEOC was compelled to publish this Guidance suggests that the job market is doing the exact opposite to the detriment of many well qualified employees.

This Guidance will certainly spur more discrimination charges and lawsuits based on these issues, as they are now front and center for the plaintiffs’ bar. To avoid being subjected to such claims and to be able to effectively defend them, employers will have to adopt more flexible policies and a more open mind on the role of caregivers in the workplace.

Lessons from Childrens' Lit

“Farmer Brown has a problem. His cows like to type. “

So starts Click Clack Moo, Cows That Type, my soon to be one year old daughter’s favorite book. In Click Clack Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed. 


2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution. 


3. Don’t Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).

Pregnancy discrimination claims on the rise

It certainly seems like we are in the midst of another baby boom. Everywhere you look there are either pregnant women or women pushing strollers or lugging infant car seats. So perhaps it is not surprising that given the fact that women are much more career oriented now than 20 years ago, pregnancy discrimination claims are on the rise. With $4 gasoline on the horizon and the cost of living getting more expensive every day, few families are afforded the luxury of living on one income.

Eve Tahmincioglu from msnbc.com succinctly summarizes the law against pregnancy discrimination in the workplace: "Pregnancy discrimination is indeed illegal.... You cannot refuse to hire a woman because she is pregnant. You cannot fire her because she is pregnant. You cannot demote her or dock her pay because she is pregnant. Even if you ask a woman about her child-rearing plans, and don’t do the same of your male job applicants or employees, that’s a no-no." And yet, despite the fact that every company knows it cannot discriminate because of pregnancy, according to David Grinberg, an EEOC spokesperson: “The increase in pregnancy discrimination charge filings and lawsuits is cause for concern.... [P]regnancy discrimination lawsuits by EEOC have increased about threefold from six or fewer per year in the early to late 1990s, to 16 or more per year since 2001." Pregnancy discrimination charges charges filed with the EEOC, state and local agencies jumped nearly 19 percent to a record 4,901 last year.

The Pregnancy Discrimination Act is not the only law employers must worry about when dealing with pregnant employees. The Family and Medical Leave Act mandates 12 weeks of unpaid leave for employees for childbirth and related care, and makes it illegal to terminate an employee during that leave or in retaliation for taking the leave. The FMLA, though, only applies to employers with 50 or more employees and to employees to worked at least 1,250 hours in the preceding 12 months.

Many Ohio small businesses are therefore under the mistaken impression that maternity leave is not required of them. Ohio law, however, begs to differ. Separate and distinct from the FMLA's 50 employee/1,250 hour prerequisites, section 4112-5-05(G) of the Ohio Administrative Code provides that a female employee must be granted a leave of absence for a reasonable period of time on account of childbearing. This requirement applies regardless of whether an employer has a maternity or leave of absence policy. According to the Ohio courts that have examined this provision, a "reasonable period of time" may exceed 12 weeks depending on the circumstances.

This area of the law is a minefield for the unwary employer. The federal PDA intersects with the FMLA, which then intersects with Ohio law, all creating a trap that can prove very costly for an employer that terminates a woman while pregnant or shortly after childbirth. These issues will continue to plague employers as more women return to work after childbirth. The safest course of action is to grant all women 12 weeks of maternity leave, regardless of their tenure and the size of your business, and not to terminate an employee following childbirth without consulting your attorney first.

Ohio bans sexual orientation discrimination for state employees

Governor Strickland on Thursday signed an Executive Order that protects all State workers from discrimination based on sexual orientation or gender identity in hiring, layoffs, firings, transfers, promotions, demotions, compensation and eligibility for training programs. The Order restores protections first put in place by Governor Celeste and 1983, continued by Governor Voinovich, but removed by Governor Taft in 1999.

According to today's Columbus Dispatch, however, the Governor has concerns that any legislation by which Ohio joins the 20 other states that ban such discrimination in all employment might be unconstitutional. The problem, according to the Governor and his legal counsel, is that the 2004 amendment to the Ohio Constitution banning marriage may be so broadly worded that it could make such wider employment protections unconstitutional. The Dispatch quotes the Governor as saying, "Would I be sympathetic to efforts to end discrimination within the private workplace? Yes. Would I need to see the specifics of such legislation before I would ever commit myself to supporting or opposing it? Absolutely." Governor Strickland added that he wants "Ohio to be a place where all citizens are valued and included and allowed to fully participate without fear or concern that they may be the subject of discrimination based upon who they are." The article also notes that many private sector employers already ban such discrimination as part of their own internal EEO policies.

While the national push seems to be in favor of a broad ban against this type of discrimination, it is plausible that the 2004 measures enacted to help re-elect George Bush could have long lasting implications for workplace rights long after Mr. Bush leaves office.

EEOC issues new EEO-1 Form for 2007

As most companies should be aware, the EEO-1 Report is a confidential government form required of employers with 100 or more employees or with 50 or employees and with government contracts of $50,000 or more. It requires those employer to annually provide to the Employment Opportunity Commission and the Department of Labor, Office of Federal Contract Compliance Programs a count of their employees by job category and by ethnicity, race, and gender. The annual deadline for filing September 30. You may not be aware, however, that for the 2007 filing year the EEOC has approved a revised EEO-1.

The new EEO-1 Report subdivides the current job category for “Officials and Managers” into two levels based on responsibility and influence within the company: Executive/ Senior Level Officials and Managers (who plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO), and First/Mid-Level Officials and Managers (who direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations). It also moves business and financial occupations from the Officials and Managers category to the Professionals category, for the express purpose of improving data for analyzing trends in mobility of minorities and women within Officials and Managers.

The revised form also makes a number of changes to the race and ethnic categories. The revised EEO-1 report: adds a new category titled "Two or more races"; divides "Asian or Pacific Islander" into two separate categories; renames "Black" as "Black or African American"; renames "Hispanic" as "Hispanic or Latino"; and strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers.

Separate and apart from the new categories, the self-identification aspect of the new EEO-1 Form is the most intriguing facet of this new program. The EEOC wants to employers to shy away from visually identifying employees' race and ethnicity, ostensibly to avoid stereotyping, and instead is encouraging employers to ask employees and new hires to self-identify. The EEOC endorses what it calls the "Two Question Format." Employers are first to ask if an employee is Hispanic or Latino (ethnicity), and second ask what race/races the employee considers himself or herself to be. The EEOC even goes so far as to suggest that employers may ask, but are not required to ask, employees to specify particular races instead of simply checking “Two or More Races.” Even if, however, employees supply detailed race data, employers should count such employees in the “Two or More Races” category on the new EEO-1. This process should make for some very interesting workplace conversations as we get closer to the September filing deadline.

Silence is not always golden - confidentiality policies may violate NLRA

The National Labor Relations Act makes it unlawful for an employer, in a union or non-union shop, to interfere with, restrain, or coerce employees exercising their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. One such protected activity is discussing terms and conditions of employment. In Cintas Corp. v. NLRB, the United States Court of Appeals for the D.C. Circuit upheld a ruling by the National Labor Relations Board that Cintas’s corporate confidentiality policy violated the Act because employees could construe the policy to prohibit discussions of wages or other terms and conditions of employment.

Cintas’s policy, contained in its employee handbook, stated: "We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters." Cintas used to the term "partners" synonymously with "employees." The quoted language is typical of corporate confidentiality policies. Furthermore, while the policy stated that a violation of the policy could result in discipline, Cintas had never disciplined any employees for discussing wages or other terms and conditions of employment.

The Court determined nevertheless that the mere maintenance of such a policy violated the Act. It reasoned that because employees could reasonably believe that the policy forbids any discussion of terms and conditions of employment, a reasonable interpretation of the policy could have a chilling effect on employees.

Thus, to be lawful under the NLRA corporate confidentiality policies must be sufficiently limited by specific context or language so as to be clear to employees that the rules do not restrict their rights to discuss the terms and conditions of employment. The Court provided as an example of a lawful policy one that is limited only to disclosure of proprietary information or trade secrets.

E-discovery provides a potential weapon against litigating employees

After Target Stores terminated Judith Teague's employment, she claimed gender discrimination and filed a charge of discrimination with the EEOC and a subsequent lawsuit in federal court. During discovery in the lawsuit, Target learned that Teague owned a home computer on which she conducted a comprehensive on-line job search and exchanged e-mails about her termination and the discrimination claim. Target asked for the computer in discovery in support of its defenses to her back pay and discrimination claims. Teague claimed, however, that in August 2004 the computer "crashed" and she disposed of it. Because of her spoliation of relevant evidence, the District Court granted Target an adverse inference instruction -- that is, at trial the jury would be permitted to infer from Teague's destruction of evidence that any such evidence that would have been found on the computer would have favored Target. In so ruling, the Court relied on several facts. First, Teague had an obligation to preserve her computer because it contained electronic evidence relating to her claim against Target and her efforts to mitigate her damages. Secondly, because at the time of disposal she had already filed her EEOC charge and hired an attorney to pursue litigation, she discarded the computer with a culpable state of mind.

Thus, the Court announced that it would sanction Teague by giving an adverse inference instruction to the jury at trial. Not surprisingly, within two weeks of that Order, the case was settled and dismissed on terms that one can only assume were very favorable to Target.

Employers have been fearful that the recent e-discovery amendments to the Federal Rules of Civil Procedure would prove to be expensive and burdensome in managing myriad e-mails, documents, and information stored daily on corporate servers. Teague v. Target Corporation shows that e-discovery also is a potential trap for unwary employees and a potential weapon for employers to add to their arsenal of litigation tools. Companies should considering asking in discovery for e-mail addresses and computer information from all plaintiff-employees. As Target found out, you never know what you will find. As Teague v. Target Corporation points out, it's often what you do not find that proves the most helpful.

Age discrimination lawsuits continue to rise

In an article that will probably not come as much of a surprise to employers, according to today's Houston Chronicle baby boomers continue to battle age-based bias the workplace. What may be surprising, however, is the amount of dollars being spent to resolve cases in which companies almost certainly did not practice age discrimination, and large sums of money that can be at risk once cases are placed into juries' hands. The article discusses a claim filed by the EEOC against Lucent Technologies, settled for $195,000, as compared to a $1,275,000 age discrimination verdict against the University of Missouri-St. Louis in favor of its former basketball coach. Closer to home, a jury in federal court in Cleveland last fall awarded a former New York Life local manager $16 million (including $10 million in punitive damages) in an age discrimination case. As the workforce ages, so will the frequency of claims based on age discrimination.

The lessons for employers are several. First, well documented legitimate reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Secondly, judges and juries will punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive. Finally, all legal issues aside, employers should guide themselves by the golden rule - treat employees as one would want to be treated if in their shoes. Juries are comprised of many more employees than employers, and if those jurors feel that the plaintiff-employee was treated the same way the jurors would want to be treated, the jury will be much less likely to punish the employer, and the dollars needed to resolve the case will be much lower, if needed at all.

Are new protected classes on the horizon?

While some companies voluntarily choose to implement policies that state that they will not discrimination on the basis of sexual orientation, under federal law and the law of most states (including Ohio) it is perfectly legal for employers to make employment decisions based on that characteristic. With the Democrats now controlling Congress, however, change in the law might be on the horizon. Pending in Congress is the Employment Non-Discrimination Act of 2007. That bill would prohibit would prohibit discrimination on the basis of perceived or actual gender identity (which is defined as gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth) or sexual orientation (which is defined as homosexuality, heterosexuality, or bisexuality). While most reasonable people can agree in principle that discrimination in any form is wrong, I question the inclusion of "perceived" in the bill's protection, especially when courts often protect sexual stereotypes as a form of gender discrimination. This bill is still a long way from becoming law, but it does bear watching as passage in its current form would potentially open a new floodgate of litigation.

Another bill that is currently pending on Capitol Hill is the Genetic Information Nondiscrimination Act of 2007. Among other changes, that bill, which overwhelmingly passed by a vote of 420-3 in the House, makes it an "unlawful employment practice," as that term is used by the Equal Employment Opportunity Commission, for an employer, employment agency or labor organization to use genetic information in making hiring, firing, or promotion decisions. In other words, genetic discrimination would be treated in the same way as other forms of discrimination. While I'm not sure how an employer would necessarily acquire employees' genetic information, given the overwhelming support in the House, it's fair to assume this bill will soon become law, and also bears watching.

A Cautionary Hiring Tale

In May 2004, Pfizer hired Dr. Dale Thurman as a veterinary pathologist. Thruman claims that prior to hiring, Pfizer's recruiting manager, Ruth Butts, orally told him that under the company's pension plan, he would be eligible for retirement at age 62 with a full pension benefit of $3,100 per month. Relying on that statement, Thurman quit his job in Ohio and moved to Michigan for the position at Pfizer. Shortly after he started working, Pfizer informed Thurman in writing that the pension calculation Butts gave him was incorrect, and the actual benefit amount would be $816 per month, a sizeable difference. And, like any disgruntled employee, he took his dispute to court, suing Pfizer for fraud and misreprentation. Pfizer defended the lawsuit, asserting that because the claims relate to its pension plan, the claims are exclusively governed by ERISA and the state law claims are preempted. The District Court agreed and dismissed the doctor's complaint.

In Thurman v. Pfizer, Inc., however, the Sixth Circuit disagreed, and in the proceed provided some cautionary language for employers in making representations during the hiring process. Critically, because Thurman sought damages based on what he lost by quitting his old job (i.e., lost of stock options, salary, benefits, and moving expenses) and not damages incurred by relying on Butts' representation (i.e., the higher pension benefit), the remedy sought was not plan-related and therefore the state law claims did not implicate ERISA. According to the Sixth Circuit, the claims were garden variety mispresentation claims that were too far attentuated from the Plan to invoke ERISA or its preemption provision:

What we have here is simply a case of a person who left his old employer based on promises made by his new employer. These promises could have concerned anything — for example, an increase in wages, more vacation days, or free parking. Here, these promises just so happened to concern retirement benefits. We see no reason to bind employers to some promises used to induce acceptance of an employment offer, but give them a "get out of jail free card" when their promises concern the scope of a plan governed by ERISA.

The Court then admonished employers to be more carful in what they tell applicants, and advised that a company will not be able to hide behind ERISA if a misreprentation made during the hiring process causes the applicant to rely to his or her detriment in accpeting the position:

We simply hold that employers who misrepresent certain benefits provided by ERISA-governed plans to prospective employees cannot later use preemption as an end-run around liability for fraudulent or innocent misrepresentations. If adhering to promises regarding ERISA-governed plans proves too cumbersome for employers, then during the recruitment process, those employers must simply be more careful before informing potential employees of the ERISA-governed benefits to which they might be entitled. This is a duty created by state law, with which we see little basis for federal law to interfere.

The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims?

While Ohio and federal anti-discrimination laws have long prohibited an employer from retaliating against an employee who makes a claim of discrimination, opposes an act of discrimination, or participates in any manner in an investigation, proceeding, or hearing related to a claim of discrimination, the frequency of these claims continue to rise. Historically, courts would look for some economic impact before deciding that a job action was retaliatory.

On June 22, 2006, the United State Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. White, a case that many employers feared would radically alter the landscape of retaliation claims, loosen the meaning of “retaliation,” and expand the parameters of those employees earning the law’s protection. The Court clarified that an employer need not take an ultimate employment action (such as termination, demotion, or transfer) against an employee for retaliation to occur. Instead, any “materially adverse action” could constitute actionable retaliation. The Supreme Court explained the level of seriousness to which the employment action must rise before it becomes “adverse” and therefore actionable:

[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms…. The anti-retaliation provision … prohibit[s] employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

Thus, the key determination in whether an employer has subjected an employee to an adverse employment action is the distinction between material adversity and trivial harm.

A recent Sixth Circuit decision illustrates that courts continue to rely heavily upon the economic impact of the alleged retaliatory conduct in determining its material adversity. In Halfacre v. Home Depot, U.S.A., Inc., Halfacre’s performance evaluations changed significantly for the worse after he filed an EEOC charge. The Sixth Circuit reversed the district court’s grant of summary judgment to the employer on the retaliation claim, rationalizing that if a lower evaluation actually impacted the potential for raises or promotions, the bad review would constitute an adverse employment action.

In the words of the Supreme Court: “Context matters.” That context has been, and seems to remain, largely about economic impact.