Tuesday, September 30, 2014

When the same actor hires and fires, discrimination is unlikely

It seems to be common sense that if the decision maker accused of a discriminatory adverse action is also the individual responsible for earlier hiring that same person, it is unlikely that a discriminatory reason motivated the latter decision. After all, if I discriminate against people of a certain race (or gender, age, religion, etc.), why would I hire them in the first place? Wouldn’t I just not hire them to keep them out of my organization?

Courts refer to this as the “same-actor inference” — inferring a lack of discrimination from the fact that the same individual both hired and fired the employee.

A recent decision from the Southern District of Ohio applied this inference in a case in which a fast-food manager claimed discrimination after the “same actor” hired him, and, shortly thereafter, fired him:

Even Plaintiff’s theory of this case does not suggest race discrimination: it defies logic that a Caucasian manager would hire him in an attempt to replace a minority manager and then “turn the tables” four months later and fire him for being Caucasian.

This is not to say that the same actor can never discriminate. After all, Chevy Chase hired Richard Pryor after lobbing the worst kind of racial bombs across the interview desk. Indeed, in the 6th Circuit, this “same actor” inference is insufficient, in and of itself, to entitle an employer to summary judgment. But, if you are faced with a case in which the same actor is accused of firing after hiring, absent other compelling evidence of discriminatory intent, you will have a great defense to the discrimination claim.


Monday, September 29, 2014

What does an ADA interactive process not look like?

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an EEOC charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.

These are the facts of the latest ADA lawsuit filed by the EEOC. If the facts as the EEOC alleges are true, this case seems like a slam dunk for the agency.

Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations proposed or requested by the employee. The employee might not be entitled to a requested or preferred accommodation, but he or she is entitled to a good-faith exploration of their possibility.

In this case, it appears that the employer did the exact opposite of what the ADA requires of it, and, to make matters worse, blamed the employee for the breakdown of the interactive process when later firing her on the heals of her EEOC charge. 

This employer is going to learn an expensive lesson about the reasonable accommodation process. Perhaps you can learn something from its apparent mistakes. 

Friday, September 26, 2014

WIRTW #338 (the “can you find me now” edition)

According to a recent Harris Poll, men are nearly twice as likely to lose their smartphones than women (46% to 27%). Moreover, the younger you are, the more likely you are to lose your phone. For employees age 18-34, 60% of men report losing their smartphones, as compared to only 30% of women.

My own house is the exception, not the rule. Neither my wife nor I fall into the 18-34 demo (sorry, honey), and she is much more likely to be one saying, “Have you seen my phone,” as we’re trying to leave the house.

So, readers, what say you? Who loses their phones more, men or women?

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour


Thursday, September 25, 2014

From the archives: Time off for religious holidays

Since today is both Rosh Hashanah and a work day, I though it appropriate to go deep into the archives, all the way to (yikes) 2008, to reprint a post discussing an employer’s obligations to an employee who asks for a day off to observe a religious holiday.

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

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

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

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

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

Wednesday, September 24, 2014

EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:
The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.
This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:
If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.
Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Tuesday, September 23, 2014

Is it legal to fire an employee for off-duty alcohol consumption?

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy—no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the EEOC took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.

The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the ADA protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.

Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 

Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.

Monday, September 22, 2014

This is what a retaliatory waiver of EEOC rights looks like

In case you missed it last Friday, a federal judge dismissed the EEOC’s lawsuit against CVS, which had challenged as retaliatory various garden-variety provisions in the retailer’s employment separation agreement.

On that same day, the EEOC announced the filing of another lawsuit, which also challenged as retaliatory a provision in an employment document. Unlike the CVS lawsuit, however, this lawsuit likely has merit.

The EEOC alleges that a Florida restaurant franchisor operator requires, as a condition of employment, all applicants and employees to submit all employment-related claims to binding arbitration, and waive their rights to file discrimination charges with the EEOC. You can read the allegedly offending arbitration clause here.

Unlike the challenged clauses in the CVS case, this clause expressly prohibits individuals from pursuing discrimination charges with the EEOC (or its state or local counterparts). The employment discrimination laws, however, prohibit as retaliatory any effort by an employer to require employees to forsake their rights to see redress with the EEOC. Thus, in my opinion, as a management-side employment lawyer, this employer’s agreement has problems.

The proper way to draft an arbitration agreement, or other agreement that waives certain rights or remedies, is to carve out EEOC charges. You would say something like this:
Nothing in this Agreement is intended to, or shall, interfere with the employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against the Employer, regardless of who filed or initiated any such complaint, charge, or proceeding.
Because this clause protects the EEOC’s right to investigate and remedy violations of, and otherwise enforce, the law, it should pass muster with the EEOC. (Of course, before you implement any such language in your agreements, you must consult with your own employment counsel).

My advice to the employer in this case is to settle with the EEOC as soon as possible on the best terms possible, and avoid the expense of a costly uphill legal battle that will be difficult to win.

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