Special considerations for employment of veterans with service-connected disabilities

In Ohio, two laws apply to the employment of veterans: the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides reemployment rights to returning veterans, and Ohio's ban on military status discrimination, which goes into effect on March 18. If a returning veteran is injured, though, another law might come into play, the ADA. Earlier today the EEOC published guidance for employers on how to handle veterans with service-connected disabilities under the ADA. The following summarizes the EEOC's key points:

How does USERRA differ from the ADA?

USERRA protects the reemployment rights of those who leave their civilian jobs to serve in the uniformed services. The ADA prohibits employers from discriminating against qualified individuals with disabilities with respect to hiring, promotion, termination, and other terms, conditions, and privileges of employment. The ADA also prohibits disability-based harassment and provides that, absent undue hardship, applicants and employees with disabilities are entitled to reasonable accommodation. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job.

Is a veteran with a service-connected disability automatically protected by the ADA?

No. The impairment must meet the statutory definition of a "disability" under the ADA, meaning a person who (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment, and who otherwise meets the employer's requirements for the job and can perform the job's essential functions with or without reasonable accommodation.

May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a service-connected disability?

Yes, if the employer is asking the applicant voluntarily to self-identify for affirmative action purposes. Otherwise, employers generally may not ask for medical information from applicants prior to making a job offer.

What steps should an employer take if it asks an applicant to self-identify as a "disabled veteran" for affirmative action purposes?

If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously (i) that the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and (ii) the specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the employee to any adverse treatment, and that it will be used only in accordance with the ADA. Any information collected must be kept separate from the application to ensure confidentiality.

May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?

Yes. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability." The law neither prohibits nor requires affirmative action on behalf of disabled individuals. Therefore, an employer may, but is not required to, hire a qualified individual with a disability over a qualified applicant without a disability.

What types of reasonable accommodations may veterans with service-connected disabilities need for the application process or during employment?

Some examples of possible reasonable accommodations to consider include: written materials in accessible formats; recruitment fairs, interviews, tests, and training held in accessible locations; modified equipment or devices; physical modifications to the workplace; permission to work from home; leave for treatment, recuperation, or training related to the disability; modified or part-time work schedules; a job coach; reassignment to a vacant position.

How does an employer know when a veteran with a service-connected disability needs an accommodation?

Usually, the reasonable accommodation process begin with a request by the employee or someone else on his or her behalf. The request does not have to mention the ADA or use the term "reasonable accommodation" and simply can be an indication that the employee needs a change for a reason related to a medical condition. A request for reasonable accommodation is the first step in an informal interactive process between the individual and the employer. That process usually involves determining whether the employee actually has a "disability" Employers should also ask what is needed to do the job.

May an employer ask a veteran with a service-connected disability whether a reasonable accommodation is needed if none has been requested?

It depends. During the application process, an employer may explain what the hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (such as blindness or a missing limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type. Once a veteran with a service-connected disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.

Employer electronic monitoring survey illustrates the importance of clearly defined policies

The Electronic Discovery Navigator is reporting that according to the 2007 Electronic Monitoring & Surveillance Survey from American Management Association (AMA) and The ePolicy Institute, more than half of all employers have fired an employee for e-mail or internet abuse. According to the report:

The 28% of employers that have fired an employee for e-mail misuse cited the following reasons:

• Violation of any company policy (64%)
• Inappropriate or offensive language (62%)
• Excessive personal use (26%)
• Breach of confidentiality rules (22%)
• Other (12%)

The 30% of employers that have fired an employee for internet abuse cited the following reasons:

• Viewing, downloading, or uploading inappropriate/offensive content (84%)
• Violation of any company policy (48%)
• Excessive personal use (34%)
• Other (9%)

The stat that really caught my eye is that of the 65% of companies that use software to block connections to websites they deem inappropriate for work, 18% prevent employees from visiting blogs. And, it's not only the reading of blogs that is getting employees in trouble. Both Ernie the Attorney and John Phillips' Word on Employment Law are reporting on a CNN producer fired for having a blog that CNN deemed to be unfriendly towards it. CNN has a policy in its handbook that prohibits employees from writing for any non-CNN outlet without network approval, and terminated the employee for his off-work musings.

Technology in today's workplace comes in too many forms to keep track. It's no longer just enough to have a policy that covers e-mail and internet access. Workplace technology is not going to get any less complicated, and it is important to have policies in place that keep up with the changes. Policies should also cover blackberries and other PDAs, cell phones, and even blogs. Companies have to be careful, however, not to overreach and be too draconian in what they try to accomplish with these policies. If you intend to hold employees accountable for what they do on their private free time (whether it's blogging, smoking, or any other lawful activity), it's best to have those expectations out in the open so that everyone is operating under the same ground rules, and people will have less of a reason to gripe if there is some adverse action taken.

What else I'm reading this week #20

This week starts off with a couple of stories that fall under the related categories of "You can't make this stuff up and "Why I love my job."

• The aptly named Lowering the Bar brings us the tale of an employee who was fired for trying to solicit a hooker on the company's dime and then filing for unemployment.
• From Above the Law, we have a story of a supervisor at a Utah motivational coaching business accused of waterboarding an employee in front of his co-workers as, well, motivation to work harder. The lawsuit also alleges that the managers also allowed the supervisor to draw mustaches on employees' faces, take away their chairs and beat on their desks with a wooden paddle.
• Meanwhile, The Laconic Law Blog and Overlawyered both bring us the story of two young women who claim that Southwest Airlines discriminated against them because they were too beautiful. For the curious, Wizbang has their photo. The following is Southwest Airline's very clever viral response to the claim [Hat tip to KnowHR Blog]:

Dan Schwartz at the Connecticut Employment Law Blog reports on his state's legislature's consideration of Workplace Bullying legislation. More than once, I've argued against this type of legislation - liability for a jerk boss has the real potential to put a stake through the heart of employment at-will. You can read my thoughts on this topic here and here.

Kris Dunn, The HR Capitalist, highlights the evils of "reply all." The comments to Kris' story relate some personal "reply all" horror stories.

George's Employment Blawg gives us a very thoughtful summary of the ERISA landscape post-LeRue.

BLR's HR Daily Advisor gives us 7 stupid things that supervisors say that beg for a lawsuit.

The Evil HR Lady blogs about the importance of computer and Internet use policies at work.

Finally, John Phillips' Word on Employment Law provide a state-by-state survey of which states require employers to provide employees time off to vote. Please note, as we approach March 4, that Ohio requires employers to give employees a "reasonable amount of time off" to vote, and that salaried employees cannot be docked.

High medical costs as direct evidence of disability discrimination

Federal courts of appeals continue to make family responsibility discrimination a hot button issue. Typically, we've seen family responsibility issues arise in the context of childcare. Today, we'll examine a family responsibility case that deals with associational disability discrimination, Dewitt v. Proctor Hospital, which permitted an employee with a terminally ill husband to pursue her ADA claim.

Phillis Dewitt worked at Proctor Hospital as a clinical manager, and by all accounts was a valued employee. Dewitt and her husband, Anthony, were covered under Proctor's medical plan. Proctor was partially self-insured for its medical coverage. It paid the first $250,000 of annual covered medical costs, and anything above that "stop-loss" figure rolled into an insurance policy. Because it was self-insured, Proctor kept quarterly reports of all employees with claims over $25,000.

Throughout Dewitt's tenure at Proctor, her husband suffered from prostate cancer, and the high medical costs that went along with it. In September 2004, Dewitt's supervisor, Mary Jane Davis, confronted her about her husband's medical claims, specifically asking what treatment he was receiving and why his doctor hadn't put him in hospice yet. Davis repeated her inquiry in February 2005. In May 2005, Davis organized a meeting of Proctor's clinical managers and advised them that because of the hospital's financial troubles it required a "creative" effort to cut costs. Three months later, Proctor fired Dewitt and designated her "ineligible to be rehired in the future." Dewitt's husband died a year later.

In her lawsuit, Dewitt claimed "associational discrimination" under the ADA, that Proctor fired her to avoid having to pay for the substantial self-insured medical costs it incurred because of her husband. The 7th Circuit pointed out the associational discrimination plaintiffs fall into 3 categories: expense, disabled by association, and distraction. Dewitt's claim falls into the "expense" category, an employee fired because a family member has a "disability" costly to the company.

The Court found that Dewitt had presented a jury question on her disability claim and reversed the trial court's dismissal of her claim. Specifically, the Court found that she had presented "direct evidence" of discrimination. Proctor fired Dewitt 5 months after Davis' last conversation with her about her husband's medical treatment and costs, and 3 months after Proctor warned employees about "creative" cost-cutting measures. In the Court's words:

[T]he timing of Dewitt’s termination suggests that the financial albatross of Anthony's continued cancer treatment was an important factor in Proctor's decision.... One could reasonably infer that Dewitt was terminated after Proctor conducted its latest periodic analysis of medical claim "outliers" and, this time around, decided that its "wait and see" strategy with the Dewitts was costing the hospital tens of thousands of dollars every year. A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.... Because Dewitt has established that direct evidence of "association discrimination" may have motivated Proctor in its decision to fire her, a jury should be allowed to consider her claim.

This case is an example of an employer who did just about everything wrong. It repeatedly grilled an employee about her husband's medical condition, and then clearly fired her because of the high cost of his medical care. From the employer's point of view, this case would be scary to present to a jury. It's difficult to think of a more sympathetic plaintiff in an employment case, which presents a real big problem for Proctor at trial.

While I don't mean to sound heartless, the concurring opinion makes a good point as to what is and is not "disability" discrimination. The ADA makes discrimination based on "disability" illegal; discrimination based solely on medical costs simply is not illegal. [ERISA discrimination is another issue entirely, which the court did not reach].

An employer's most likely concern about an employee who has a disabled relative, especially a spouse or child, is that the relative's medical expenses may be covered by the employer's employee health plan. There is a positive correlation between being disabled and having abnormally high medical expenses, just as there is a positive correlation between the age of an employee and his salary because most employees receive regular raises as long as they perform satisfactorily. Suppose a company encounters rough waters and decides to retrench by firing its most expensive employees. They are likely to be older on average than the employees who are retained, but as we said many years ago, "nothing in the Age Discrimination in Employment Act forbids an employer to vary employee benefits according to the cost to the employer; and if, because older workers cost more, the result of the employer's economizing efforts is disadvantageous to older workers, that is simply how the cookie crumbles." ...

[A]n employer who discriminates against an employee because of the latter's association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It's as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case. So far as the record reveals, the defendant fired the plaintiff not because her husband was disabled but because his medical expenses—which might not have been any lower had they been due to a condition that did not meet the statutory definition of a disability—were costing the defendant an amount of money that it was unwilling to spend. All the evidence recited in the majority opinion concerns costs ("cutting costs," "high cost of Anthony's medical treatment," "financial albatross," etc.) that a person who had a nondisabling medical condition could equally incur. If cost was indeed, as appears to be the case, the defendant's only motive for the action complained of, the defendant was not guilty of disability discrimination.

I am no way suggesting, from either a legal, HR, or human perspective, that companies should do what Proctor did. However, I do think that Judge Posner's concurrence makes a compelling argument on whether an employment decision based solely on medical costs constitutes "disability" discrimination. Proctor's job at trial is to convince the jury that medical costs were its only reason for the discharge, and that the disability itself played no role, a difficult argument to make and difficult distinction for a jury to draw.

Surpeme Court defers to EEOC on the definition of a "Charge" of age discrimination

The U.S. Supreme Court has issued its second employment decision in as many days, as today it has issued its opinion in Federal Express v. Holowecki. [The opinion is available for download from the Court here.]

Recall that Holowecki raised the procedural issue of what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act. The plaintiff submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination until 6 months later. In the interim, the EEOC neither assigned a charge number, nor informed Fed Ex that it had received the Intake Questionnaire. The issue was whether the Intake Questionnaire constituted a "Charge" sufficient to start the proceedings with the EEOC.

A 7-2 majority of the Court deferred to the EEOC's regulations and policy statements, and held that the Intake Questionnaire was a "Charge" because it could be reasonably construed as a request for the EEOC to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. This decision prejudices employers who will be denied any opportunity to resolve a case via the EEOC's informal conciliation process. The majority attempts to cure this problem by suggesting that the trial court stay the case to allow for mediation. That stay, however, ignores the crucial differences between a mediation before as compared to after a federal court case has been filed.

In concluding his dissent, Justice Thomas hits a home run in summarizing the key problems with the majority opinion:

The implications of the Court's decision will reach far beyond respondent's case. Today's decision does nothing—absolutely nothing—to solve the problem that under the EEOC's current processes no one can tell, ex ante, whether a particular filing is or is not a charge. Given the Court's utterly vague criteria, whatever the agency later decides to regard as a charge is a charge—and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case. The Court's failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency.

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This decision will have limited impact in Ohio, because employees have a private right of action under Ohio law without first going to the EEOC. However, because age discrimination claims under Ohio Revised Code 4112.99 are subject to a short 180-day statute of limitations, the Holowecki decision could impact those employees who miss that relatively short statute and have to go the EEOC for relief to enable a federal court filing under the ADEA.

Being upfront about a non-compete agreement can save a lot of headaches

Monday's Chicago Tribune had an interesting piece about the proliferation of non-compete agreements in today's business environment. Quoting from the article:

In an economy where information and relationships rule, businesses are quicker to try to limit the damage when people leave. And it's no longer just executives and high-tech workers whom companies worry about.... Employees encounter non-compete, non-disclosure and non-solicitation issues coming and going. The forms often sit in the stack of papers that new hires are asked to sign their first day on the job. And restrictive covenants invariably get tacked on severance offers in layoffs and firings.

The article quotes Diana Smith, managing director of The Novo Group, a Chicago recruiting firm, who advises that companies and job applicants should be up front and open about non-compete agreements:

"Companies that want to recruit from their competition will find ways to make it work. People should be really open in their discussions and not be afraid that it's going to stop the show. Chances are you're going to find a way to work around it."

Ms. Smith's point is important for employers to take to heart. Despite the existence of an agreement, companies may or may not have a real interest in enforcing a non-compete agreement against a former employee. Factors that the former employer might consider are the level of the employee, the circumstances surrounding the employee's departure, the employee's customer and industry contacts, and what trade secrets and other confidential information the employee was privy to.

Nevertheless, when an employee who has signed a non-compete goes behind the old employer's back to work for a competitor, the old employer is forced into action to send a message to all of the other employees who have signed non-compete agreements that the company takes them seriously and will enforce them if pushed to do so. Past enforcement is also a factor that courts look at in examining whether to grant an injunction enforcing a non-compete agreement.

On the other hand, what happens if the new employer picks up the phone and calls the old employer to ask for permission to hire the applicant despite the non-compete? The old employer may say yes if it does not want to run up attorneys' fees by attempting to enforce a non-compete against a marginal employee. Further, by allowing the new employer to hire the employee, the old employer will signal that it expects the same courtesy in the future - that is, at least a phone call before an employee is hired. And, if the old employer says no, the new employer has not lost anything, because hiring the employee will most likely result in litigation anyway.

Asking about the existence of a non-compete or other restrictive agreement should be boilerplate in virtually all hiring processes. Picking up the telephone and asking for an employee to be released from a non-compete for a particular job costs nothing, and could save significant heartache down the road by staving off litigation that the old employer may feel compelled to bring to save face.

The nation's focus turns to Cleveland (and lots of snow)

Today's snowstorm here in Cleveland notwithstanding, there will be a Democratic debate tonight. In honor of the debate, I suggest that anyone who has an interest on the candidates' position on labor and employment issues check out Presidential Politics – Predictions for the Workplace, by John Phillips. Even though the article was written almost two months ago, it's over-inclusive in its coverage of candidates. Because Senators Obama and Clinton have not changed their positions, the piece is as timely as to them as it was when is was written. Employment law issues have not gotten a lot of play in the campaign, and John's piece is the best primer on the subject I've come across.

There really is not all that much of a fundamental difference in the two candidates' positions on labor and employment law issues. If McCain (the presumptive Republican nominee) wins the general election, we can largely expect a maintenance of the status quo. If, however, either Senator Obama or Senator Clinton becomes our next POTUS, then it safe to assume that we will see some combination of the initiatives presented in the Civil Rights Act of 2008, the Fair Pay Restoration Act, the ADA Restoration Act, the Employment Non-Discrimination Act, and the Employee Free Choice Act. Just one more factor to consider as everyone goes to the polls on March 4 and in November.

Supreme Court issues ruling in "me, too" evidence case

As predicted, the Supreme Court has reversed the 10th Circuit's decision in Sprint/United Management v. Mendelsohn, which had held that "me, too" evidence in discrimination cases is per se admissible, and that a trial court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. In a unanimous decision, Justice Thomas wrote that it was error for the appellate court to announce per se rule of admissibility and disregard the trial's court discretionary weighing of the evidence. Thus, the Federal Rules of Evidence do not require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. Instead, the trial court should balance the evidence under Evidence Rule 403 to decide on its ultimate admissibility: "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case."

This decision makes a lot of sense. It skirts the ultimate issue of whether "me, too" evidence is admissible or inadmissible because that decision should be fought in the trial court, which is in the best position to examine the evidence and weigh its relevance and admissibility. One can't judge whether evidence of discrimination by other supervisors is admissible without considering it in light of the context and theory of the case, all of which should be done by the trial judge. This decision may not give any guidance to trial judges on how and when to admit such evidence that some (including me) were hoping for, but that guidance would have impeded on their role as the ultimate gatekeepers of relevancy.

A copy of the Court's decision can be downloaded here.

[Hat tip: SCOTUS Blog]

Failure to document performance problems dooms employer's defense

In Birch v. Cuyahoga Cty. Probate Court, a court magistrate sued the court and its presiding judge, claiming that her status as the lowest paid court magistrate constituted wage-based sex discrimination. Specifically, Birch claimed that all of the female probate court magistrates were paid lower salaries than all of the male magistrates, that the highest paid female magistrate earned less than her lowest paid male counterpart, and that she was the lowest paid of all. In defense of the wage practice, the probate court claimed that it paid Birch less because of poor job performance. The Court, however, rebuked that claim because of the employer's failure to document any of the concerns in Birch's personnel file:

Appellees' assertions supported by documentary evidence might have established these facts beyond dispute. Due to a history of regrettably minimalist supervisory employment practices, however, the record is barren of evidence apart from the assertions of Judge Donnelly and Magistrate Polito to this effect. [The record demonstrates that there are no job descriptions for magistrates, no written description of the work performed by the various departments, and no protocol for determining magistrate salaries. Employees are not evaluated, and the court does not produce written documentation of performance concerns.] These assertions do not establish that appellees would have taken the same action in the absence of discriminatory motive. They do, however, create a genuine issue of material fact that precludes summary judgment.

The bottom line: if you plan on defending a discrimination case based on poor job performance, it's best to have the deficiencies documented somewhere, preferably in the employee's personnel file.

Revisiting some lessons from childrens' lit

Dan Schwartz of the Connecticut Employment Law Blog has written on a topic close my heart and on which I've written before, Click Clack Moo, Cows That Type, my daughter's favorite book. Dan uses the book to teach some basic lesson about labor relations. When I wrote about this book back in May, I drew some general employment relations lessons, which I'm republishing below:

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"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).

Article highlights the importance of medical confidentiality by employers

An article in Thursday's New York Times asks the question, "I'm Ill, but Who Really Needs to Know?"

One of the first decisions you make in the emotional hours after a scary diagnosis is whether to tell others. Most of us share the news with our loved ones, but what of the circles beyond, particularly those at work? Your boss?

If an employee chooses to disclose a medical condition to an employer, it should go without saying that it is illegal to take any adverse action against that employee because of the illness. Separate and apart from the obvious, employers have clearly defined responsibilities with the handling of employee medical information. The EEOC sets out an employer's specific responsibilities under the ADA when an employee discloses medical information:

Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.

Do not place medical information in regular personnel files. Rather, keep medical information in a separate medical file that is accessible only to designated officials. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).

The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

• to supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;
• to first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;
• to individuals investigating compliance with the ADA and with similar state and local laws; and
• pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

HIPAA also imposes certain privacy and confidentiality obligations on employers' handling of employee medical information.

It is best to advise employees in an employee handbook or policy statement about the handling of their medical information. In the handbooks I've written recently I've been incorporating a policy statement on "serious illnesses." That policy lets employees know that their medical information is confidential, limited to managers and supervisors on a need to know basis, kept in a separate file, and that anyone who makes unauthorized disclosure of employee medical information will be subject to discipline up to an including termination. This policy should be dovetailed with other policies on reasonable accommodations for disabilities.

What else I'm reading this week #19

Earlier this week, I gave my two-cents on Humphires v. CBOCS West, which will answer the question of whether 42 U.S.C. 1981 recognizes a cause of action for retaliation. The Workplace Prof Blog gives us some comprehensive analysis of this week's oral argument, and predicts a 5-4 victory for the employer. Meanwhile, Dan Schwartz at the Connecticut Employment Law Blog correctly and astutely points out that most federal retaliation claims are brought under Title VII, that Section 1981 is only used when a plaintiff misses a statute of limitations, and that we should "ignore the hype about these cases [because r]etaliation against employees for filing race ... discrimination claims would still violate state law." This point is especially true in Ohio, where an employee has 6 years to file a retaliation claim under state law, and there is no requirement that the employee first file a charge with the EEOC or OCRC.

The Workplace Prof Blog also has a very insightful post on the rising tide of employment discrimination claims being brought by Muslims.

Michael Moore from the Pennsylvania Employment Law Blog offers a different perspective on whether LaRue will open the floodgates to federal court.

Kris Dunn, The HR Capitalist, points out one of the thorny problems presented by intermittent leave under the FMLA, employees using blanket doctors' notes to work the system and take time off whenever they want even for the most trifling of ailments.

The Electronic Discovery Navigator asks the question, "Do You Know What's In Your Employee's Inbox?"

Finally, the Labor and Employment Law Blog reminds us of some the critical mistakes supervisors can make when dealing with employees.

Some lessons in remedying sexual harassment

Today, we finish our look at Hawkins v. Anheuser-Busch. We've already examined the opinion's recognition of a claim for coworker retaliation, and its ruling allowing the use of evidence of the serial harassment of non-plaintiffs. I want to finish by discussing what Anheuser-Busch did wrong and what it did right in responding to the various harassment complaints it received about Robinson, and draw some general conclusions on what is and is not an appropriate remedial response.

Before getting into the specifics of the case, it is helpful to review the standard for an employer's liability for coworker harassment. In a coworker harassment case, the employer is not vicariously liable for the acts of harassment, as it would be if the harasser is a manager or supervisor. Instead, an employer's liability for coworker harassment hinges on the reasonableness of the employer's own acts or omissions in responding to and remedying the harassment. An employer's response is unreasonable if it manifests indifference or unreasonableness in light of the facts that the employer knew or should have known. Conversely, an employer's response is adequate if it is reasonably calculated to end the harassment.

As the Court points out, merely having a harassment policy is not enough to shield an employer from liability:

The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints about a serial harasser, lets the known harasser continue to injure new victims. Because Robinson was a known serial harasser, the brewery is liable its its response to Cunningham's or Hill's complaints demonstrates an attitude of permissiveness and was not reasonably calculated to end Robinson's pattern of harassment.

Armed with complaints of harassment by Cunningham and Hill against Robinson, coupled with the complaints by other employees, let's first look at what the brewery did wrong in responding to the harassment:

• It removed the complainants from their line without undertaking any additional, fundamental remedial action, such as training, warning, or monitoring Robinson. Merely separating the complaining party from the harasser is not enough; instead, the company has to proactively take additional steps reasonably calculated to prevent and end the pattern of harassment.
• It failed to counsel Robinson upon its first notice of a problem. Such counseling should have included the nature of the inappropriate behavior, a reminder of the company's prohibition against sexual harassment, and a warning that the company would not tolerate any future harassment or retaliation and that future harassment would result in discipline up to and including termination.
• It failed to implement any additional checks to prevent future harassment, such as monitoring the harasser for future non-compliance, checking in with the victims to ensure that they was no longer being bothered, and additional follow-up counseling with the harasser.
• It failed to reopen the investigation into Hill's complaint after it received information that witnesses were chilled from talking out of fear of Robinson.

The Court pointed out the "marked difference" in the brewery's handling of complaints against Robinson by 2 other employees 3 years after Cunningham's and Hill's complaints. In response to these later complaints, it promptly launched an investigation, suspended Robinson, and fired him. Given this prompt and effective remedial action, Anheuser-Busch was insulated from liability from the 2 later complaints.

So, at the end the day, what do we take away from the various pieces and parts of the Hawkins case. Perhaps it's best just to use the Court's own words:

The remedies of Title VII would be rendered impotent if employers dealing with serial harrassers were allowed to throw up their hands after their first effort to deal with the harrasser proved unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management.

The existence of a serial harasser suggests a problem that goes deeper and is more systemic than merely one harasser and the specific victims. It suggests that something simply is not working in how a business is addressing workplace harassment and retaliation. An employee like Robinson should serve as a signal to a company that it needs to scrap its entire harassment protocols and rebuild them from the ground up. That rebuilding should start with the harassment policy and comprehensive re-training. The goal, however, must be to change the way a company, its manager and supervisors, and its employees think about harassment, both in their attitudes towards it and the collective effort to eliminate it from the workplace.

Supreme Court permits ERISA claim based on 401(k) losses

In a significant decision, the Supreme Court has decided that ERISA permits an employee to sue the plan fiduciary (often the employer) because of a fiduciary breach that resulted in individual losses to a 401(k) plan. In our unstable economy, this decision is bad news for employers and a boon for the plaintiffs' bar, as employees have the green light to sue for losses to their retirement accounts, even if they directed the accounts.

As for analysis, I'll leave the heavy lifting to others:

• SCOTUS Wiki, which has a summary of the case.
• SCOTUS Blog, which has a copy of the opinion.
• Workplace Prof Blog, for some analsysis.
• John Phillips' Word on Employment Law, for some more analysis.

A couple of carnivals for everyone

Blawg Review #147 is available at Rush on Business, a friend of this blog that focuses on Iowa employment and business law. Blawg Reivew, for the unfamiliar, is a weekly review of the best law blog posts, hosted by a rotating cast of legal bloggers. Mark your calendars, as I'll be hosting Blawg Review #172 on August 11.

Meanwhile, HR Thoughts has this week's Carnival OF HR, highlighting various employment law and HR-related blog posts from the past 2 weeks.

Evidence of "serial harassment" permitted in sex harassment claim

Yesterday we looked at Hawkins v. Anheuser-Busch's ruling on coworker retaliation. (See 6th Circuit recognizes claim for coworker retaliation). Today, we'll examine another aspect of this opinion, the issue of whether a harassment plaintiff can rely on evidence of the earlier harassment of others by the same coworker. Before we examine the specific issue, it's helpful to look at some additional facts specific to the harassment claims.
Anheuser-Busch first received a complaint of harassment concerning Bill Robinson in 1993. At that time, Diana Chiandet (not a plaintiff in the lawsuit), who worked on the same line as Robinson, complained that she had received 3 harassing and threatening anonymous notes. The notes included gems such as, "If you want something Hot and Hard call me.... They call me Mr. Big Daddy," and "I think it's about time we got together so we can have a good time all nite [sic] long. I no [sic] you like it long and Hard. And I have tools to do that all nite [sic] thing. P.S. Don't worry I will make real good to you. I no [sic] what you like PAIN." Shortly after Chiandet complained her car was sideswiped at work. A handwriting expert confirmed that Robinson was the author of the notes, a fact he also admitted. The brewery terminated his employment, but he was reinstated following a union grievance.
Jackie Cunningham, one of the plaintiffs, first complained about Robinson in 1999. Her allegations included:

1. During a training session in 1999, Robinson sang a rap song to her with the lyrics: "Baby, won’t you back that thing up," and then held money in his hand and said: "Is that what it's gonna take?"
2. Robinson tried to put his hand on her shoulder, but she moved away.
3. Robinson said: "I will suck your p***y but you got to suck my d**k."
4. Robinson caressed her back and she responded by screaming at him: "Don't touch me."
5. Robinson told her to come over to his vehicle at work and, when she refused, he chased her around and tried to grab her as she ran away.
6. Robinson asked her: "Why don't you just suck my d**k?"
7. Robinson told Cunningham that he was getting rid of his girlfriend, and asked her: "Why don't you just make up your mind?" while trying "to feel on her."
8. Robinson would harass her "on and off" and would "push on and on."

Cunningham repeatedly complained to her supervisor and was ultimately transferred to a different line.
Cherri Hill starting working on the same line as Robinson in January 2000, and alleged that Robinson began harassing her that November. Her allegations included:

1. Robinson touched her arms, rubbed her shoulders, and walked up close behind her, all while making "lewd and explicit" comments.
2. When Hill asked Robinson to stop, he said that he knew she "liked it" and that he "wanted to have sex" with her.
3. Robinson would walk close to her, touch her behind, and that on one occasion he rubbed against her with "his private area" and grabbed her around the waist.
4. On three or four occasions Robinson told her "she had big breasts" and a "big butt."
5. On another occasion, Robinson told her "he wanted to f**k" her and said, "I bet you have some good p***y and I know that you would like this. You should let me take you away from your boyfriend."
6. Robinson generally made lewd and sexual comments "all the time."

Recall that Hill complained to management and her car was set on fire. The brewery conducted an investigation and concluded that "Robinson did behave in a sexually inappropriate manner with both Cherri Hill and Jackie Cunningham." Remarkably, however, the brewery did not discipline Robinson. Instead, it sent Hill and Cunningham each a letter stating that their allegations were unsubstantiated, that corporate policy prohibited retaliation, and that each could contact management with any questions.
In support of their harassment claims, Cunningham and Hill each sought to rely on evidence of Robinson's earlier harassment of Diana Chiandet. Despite its remoteness in time (6 or 7 years), the Court permitted reliance on the earlier harassment as evidence of Cunningham's and Hill's hostile environment:

When determining the relative weight to assign similar past acts of harassment, the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff.
The degree to which a past act of harassment is relevant to the determination of whether a plaintiff's work environment is hostile is a fact-specific inquiry that requires courts to determine the relevancy of past acts on a case-by-case basis. In general, however, the appropriate weight to be given a prior act will be directly proportional to the act's proximity in time to the harassment at issue in the plaintiff's case. The further back in time the prior act occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harrasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harrasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively hostile.

Both Cunningham and Hill testified at deposition that they had heard about Robinson's prior harassment of Chiandet. The Court permitted the evidence because it gave credence to the plaintiffs' claim that Robinson was a serial harasser who regularly intimidated women at work. While Chiandet's incidents were remote in time, they were entitled to some proportional consideration because of their similarity.
I have serious reservations about the relevance of harassment suffered by a different employee 7 years prior to the at-issue harassment. For one thing, even under Ohio's generous 6-year statute of limitations, Chiandet's ability to file a lawsuit had run out. More to the point though, neither Cunningham nor Hill were even employed at the brewery when the harassment of Chiandet occurred. Nevertheless, the Court permitted the evidence to be considered because the plaintiffs had heard about the harassment, and could process that second-hand information to reach subjective conclusions about the hostility of the work environment. Employers, however, are entitled to some degree of certainty, and it is unreasonable to dredge up 7-year-old allegations that were already investigated, and for which the harasser had already been terminated and reinstated per his labor union. That unreasonableness is magnified by the fact that neither plaintiff was even employed while Chiandet was being harassed.
This case exemplifies the expression "bad facts make bad law." The allegations of harassment were so outrageous, and Anheuser-Busch's lack of response so negligent, that the Court was looking for anything to support its decision. Now, however, companies are faced with the prospect of never being to close the book on old allegations of harassment, as plaintiffs will be able to reach back in time to recycle stale claims into
Tomorrow, we'll finish up our look at Hawkins v. Anheuser-Busch and glean some lessons from the brewery's response and lack of response to the various harassment complaints.

6th Circuit recognizes claim for coworker retaliation

Employment discrimination laws prohibit retaliation against an employee who engages in protected activity. What happens, though, when it is not a manager or supervisor who is retaliating against an employee, but a coworker? For example, can an employer be held liable when a non-supervisory or non-managerial employee against whom a complaint of harassment or discrimination been lodged undertakes a plan to take revenge on the complaining party?

In Hawkins v. Anheuser-Busch, Inc., the 6th Circuit determined that "in appropriate circumstances, Title VII permits claims against an employer for coworker retaliation." To determine whether such "appropriate circumstances" exist to hold a company is liable for an employee's retaliation against a coworker, courts must determine if:

1. the coworker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination;
2. supervisors or members of management have actual or constructive knowledge of the coworkers' retaliatory behavior; and
3. supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.

The facts that pertain to Cherri Hill's retaliation claim are pretty outrageous. Bill Robinson frequently harassed many of his female coworkers with lewd, graphic, and often threatening language. After Hill reported that Robinson had harassed her, her car was set on fire. Following the close of its investigation into Hill's allegations, Anheuser-Busch corporate headquarters received an anonymous letter criticizing the investigation. The letter stated that "fellow employees on the line are intimidated from telling the truth because they are well aware of what [Robinson] is capable," and that employees were "afraid to get involved" because "bad things" happened to women who made accusations against Robinson. The letter recounted specific allegations of violence against women at the brewery, including Hill's car fire, that Robinson had threatened to "kill that Bitch" (meaning Hill) if he lost his job, and that the tires of another employee's car were slashed after she threatened to report Robinson for harassment. The letter also stated that Robinson had bragged that he had slashed the tires to "repay the woman for telling on him," and that it was "this type of retribution" that "keeps people from speaking out" against him.

In response, the brewery did nothing. It took no action against Robinson, did not reopen the investigation to interview additional employees, did not warn Hill, and did not set up a confidential way for employees to report harassment by Robinson. In fact, Robinson remained employed for another 3 years, until he was terminated for harassing another employee.

The 6th Circuit held that Hill's case presented appropriate circumstances for permitting her coworker retaliation claim to proceed. Anheuser-Busch management knew of the allegation that Robinson had set fire to Hill's car in retaliation for her complaint and that he had threatened to kill Hill if he lost his job. The Court found that "Robinson's threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors at the brewery," and that "Hill's allegations might ... have been substantiated by a more complete investigation."

The Court detailed Anheuser-Busch's failure in responding to Hill's complaint of retaliation:

Anheuser-Busch ... failed to show that it responded to Hill's complaint of retaliation in any meaningful way. The two members of management to whom Hill reported the fire ... allegedly not only failed to investigate Hill's allegation that Robinson had retaliated against her, but chided her for attempting to make a report. The brewery never bothered to investigate the incident, monitor Robinson, or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the brewery had an obligation to investigate the incident.... [T]he brewery never bothered to investigate Hill's allegation that Robinson was continuing to harass her in retaliation for her report. The serious nature of Hill's allegation could lead a jury to find that failing to investigate the incident and issuing a letter solely to Hill, as opposed to Robinson, was an insufficient response.

There are, therefore, sufficient facts in the record upon which a jury could find that Anheuser-Busch's failure to investigate the complaint of Robinson’s violent act of retaliation was both indifferent and unreasonable.

The lesson for businesses is an important one. A company cannot turn a blind eye to employee complaints, whether of harassment or retaliation, and expect to get a pass from a court. Burlington Northern made clear that any act that would "dissuade a reasonable worker from making or supporting a charge of discrimination" is considered adverse and therefore actionable as retaliation. Employers must be mindful not only of harassment complaints, but also retaliation complaints. One would be hard-pressed to argue that arson would not "dissuade a reasonable worker from making or supporting a charge of discrimination." Armed with information of Robinson's culpability for the fire, among other things, the brewery simply could not sit on its hands and do nothing. As long as courts make an honest assessment of whether a particular case presents the "appropriate circumstances" to hold an employer liable for retaliation by a coworker, this rule makes sense.

Later this week, I'll take a look at the other aspects of the Hawkins decision -- whether other acts of harassment unrelated to the plaintiff are relevant to a harassment claim, and the appropriateness of an employer's response to an internal harassment complaint.

Postal worker illustrates problem of employee jury duty fraud

Because it's illegal to fire an employee who misses work for jury duty, companies may be more lax in their examination of jury summonses as excuses for employee absences. As this article from February 14th's Washington Post illustrates, companies should not necessarily accept employees at their word, and when circumstances suggest, dig a little deeper to determine whether that employee is legitimately excused from work.

Neither wind nor rain nor even ice storms kept Joseph S. Winstead from doing his job as a mail processor for the U.S. Postal Service in Washington. But pretending that he was serving on a jury sure did.

Winstead spent 144 days goofing off from his work at the Brentwood mail processing plant -- by telling his boss that the rigors of jury service prevented him from sorting the mail. Over the course of Winstead's hoax, from fall 2003 to fall 2004, court papers show, the Southeast Washington resident collected $31,000 in pay from the U.S. government that he didn't earn.

He listened to months of evidence in a trial of an alleged drug gang. But there were days when the court was in recess, and the jury did not meet -- and Winstead never reported to the Postal Service, which was picking up his salary.

Winstead didn't stay on the jury long enough to render a verdict, getting excused just before deliberations started in April 2004. Even though he no longer was going to court, Winstead continued for months to pretend that he was still serving on that jury, drawing his federal salary, prosecutors said.

And he might have gotten away with it, court papers show -- if he hadn't decided to repeat the scam.

In April 2006, Winstead got another summons and once again he wound up on a federal jury at the courthouse in Washington. This time, he submitted paperwork to his bosses showing he had been serving for 40 days when he really worked a fraction of that time.... Winstead confessed that he fabricated courthouse paperwork and sent it to his supervisor....

But the record ... shows that fooling his employer with fabricated paperwork wasn't that hard.

Jurors who are government employees are entitled to be paid their full salary when they are summoned to court and selected to serve on a jury. Clerks in the federal courthouse provide each juror with signed attendance sheets showing the days they have reported for duty in the courthouse. On some forms, the dates are printed out, on others they are handwritten.

For his troubles, Winstead pleaded guilty to a federal fraud indictment, will serve 8 to 14 months in a federal prison, and must repay $38,923.95 in ill-gotten wages. I'm guessing the Postal Service will not be holding his job for him while he's in prison.

What's troubling from Winstead's tale is just how easy it was for him to fabricate his paperwork. I've had the pleasure of serving jury duty in Cuyahoga County, and the documentation of your service consists of the original summons, and a (not so) fancy certificate you are given at the end of your service to document your time served. There is nothing, however, that documents what specific days or hours one was actually in attendance. It's a pretty scary prospect, especially for the 76% of employers (according to the Bureau of Labor Statistics) who provide paid jury duty leave for their full-time employees. Is it really a big problem that employees are stealing time from their employers when they are supposed to be serving jury duty? My sense is probably not. At the same time, however, there is often real workplace tension caused by an employee's right to serve jury duty without fear of termination or retaliation. Winstead took advantage of that tension, and it is incumbent on employers to ferret out those employees who are trying to game the system to ensure fairness for everyone else.

[Hat tip: ABA Journal]

Butt painter's lawsuit to go to trial

Does anyone remember Stephen Murmer? He was the Virginia high school art teacher suing his former employer over his termination after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush. (See Butt I was doing it on my free time). School officials terminated Murmer after they saw a YouTube video in which he wore a swim thong and a Groucho Marx mask to demonstrate how he applies paint to his rear and presses it onto a canvas. The ACLE filed the lawsuit, claiming that Murmer's termination violates his First Amendment right to free expression. According to the lawsuit, available via the ACLU, Murmer was terminated for art he created on his free time and under a pen name, all of which he kept private from his students:

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one's preconceived bias of the human body. The artist's hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on the concept and the purpose of art.…

22. On or about October 25, 2003, Stan Murmur appeared in a short-lived cable TV show entitled "Unscrewed with Martin Sargent," where he explained how he promoted his artwork using the Internet, demonstrated how he creates his art, and completed a composition for TechTV.

23. As character invention Stan Murmur, Plaintiff was wearing a costume consisting of a towel wrapped around his head in a turban, a Groucho Marx mask, a white bathrobe, and a black swim thong.…

26. Stan Murmur’s performance eventually found its way onto YouTube, an Internet website on which users post videos. Plaintiff had no role in posting the video on YouTube.…

28. Plaintiff has scrupulously kept his private artwork separate from his role as a teacher.

29. At no time did Murmer discuss his art in his classroom. Nor did he ever inform students about his art or the YouTube.com video.

Murmer and the ACLU claim that what Murmer did on his own time was his own personal business and that the termination violates his constitutional right to free speech. Last week, the trial court denied the school district's motion to dismiss, permitting the case to proceed to trial on March 11.

This case continues to illustrate the dangers that employees face when posting controversial material on websites. What do you think: should employers be allowed to fire employees over personal activities outside of work?

[Hat tip: Lowering the Bar]

Supreme Court to hear argument on racial retaliation under Section 1981

On Wednesday, the Supreme Court will hear oral argument in CBOCS West Inc. v. Humphries, which asks whether an employee bringing a claim for retaliation stemming from a complaint of racial discrimination can file under 42 U.S.C. § 1981.

Enacted as part of the post-Civil War Civil Rights Act of 1866, Section 1981 requires that all people, regardless of race, have equal rights "to make and enforce contracts." The Civil Rights of 1991 affirmed the right of employees to sue under Section 1981 for employment discrimination. While Section 1981 only speaks of "race", courts have interpreted that term to also include ethnicity.

There are key differences between Title VII and Section 1981, which makes the outcome of this case important. First, Title VII requires an EEOC charge and a right to sue letter, while Section 1981 does not. Also, Title VII has a short limitations period, while one has 4 years to file under Section 1981. Finally, Title VII's damage caps do not carry over to Section 1981.

Humphries was an African-American manager at a Cracker Barrel restaurant, owned by CBOCS West. He alleged that he was fired because he complained about his supervisor's racially discriminatory behavior. The trial court dismissed his Title VII claims for procedural deficiencies, but the 7th Circuit permitted his claim to proceed under Section 1981, holding that it authorizes suits where employers retaliate against employees complaining of racial discrimination.

CBOCS West argues that if Congress intended Section 1981 to include retaliation claims, it would have specifically said so as part of the Civil Rights Act of 1991. Under a plain reading of the statute, conduct is not unlawful under Section 1981 unless it is racially motivated. Because Retaliation is motivated by the employee's protected activity, and not the employee's race, it is not covered under Section 1981. CBOCS also argues that permitting retaliation claims under Section 1981 would undermine the EEOC's conciliation and mediation process and Title VII's statute of limitations.

Humphries, on the other hand, argues that retaliation claims are universally permitted under other companion provisions to Section 1981, and that the legislative history to the Civil Right Act of 1991 indicates that Congress intended for Section 1981 to cover "harassment, discharge, demotion, promotion, transfer, retaliation, and hiring."

Given that this case will hinge on statutory interpretation, some combination of Roberts, Alito, Scalia, and Thomas will dissent in favor of a reversal. Ultimately, however, a majority of the Court will probably find that Section 1981 allows for retaliation claims. More on this case after the argument on Wednesday.

Some folks call it a jury verdict, I call it a lot of money

A federal jury in Forth Worth, Texas, has answered the age old question: How much is it worth if a female employee receives depraved and violent phone calls from a male co-worker for more than two years, in which he apes the voice of Karl from Sling Blade, threatening to kill her and cut her up. The answer: $15.6 million. On the up-side, the verdict was solely against the co-worker. The employer, American Airlines, was dismissed from the case.

The Star-Telegram has the details.

What else I'm reading this week #18

It's been a very busy week, and as usual, I'm here to bring you the best the employment law and HR blogosphere (or blawgosphere, if you prefer) offered this week.

To follow up on my post yesterday about office romances, Mark Toth at the Manpower Employment Blawg reports on a case finding that the perpetual ogling of the a female employee's chest could create a sexually hostile work environment — even in the absence of any physical contact, sexual propositions, racy remarks or other types of hallmark harassing behavior. Also take a look at George's Employment Blawg on the issue of workplace romances.

The Evil HR Lady shares her own thoughts on anti-fraternization policies, which not only prohibit workplace romances, but any type of non-work-related socializing with co-workers.

Teri Rasmussen, the Ohio Practical Business Law Counsel, posts her own thoughts on the business implications of Minor & Assoc. v. Martin, in which the Ohio Supreme Court held that retained memories are protected as trade secrets.

Both the Pennsylvania Employment Law Blog and the Connecticut Employment Law Blog (good luck Dan on your new job) have written this week on the issue of Employment Practices Liability Insurance. For more information on the pros and cons on EPLI coverage, take a look at Untangling Employment Practices Liability insurance.

The FMLA Blog has the most comprehensive review I've seen of the proposed new FMLA regulations.

BLR's HR Daily Advisor, which I recently added to my RSS reader, has two very thoughtful posts on retaliation: Retaliation: The Dumbest Thing Managers Do and Retaliation: 6 Steps to Prevent It.

Michael Fox's Jottings By An Employer's Lawyer comments on recent research on the benefit of arbitration agreements to employers.

Finally, John Phillips' Word on Employment Law draws some employment law conclusions from the dust up between Hillary Clinton and MSNBC.

When office romances go bad

I've previously given some guidance for companies on dealing with office romances. This week's Business Week Magazine covers the same topic from a cautinary perspective. Business Week cautions, "If you're thinking about hooking up at work, you're looking for love in all the wrong places." The article explains:

The odds against an office romance succeeding are just slightly better than what you'd find at the worst casino in Las Vegas. When you lose at roulette or keno, though, you're out only a couple of bucks (if you're smart), and that's the end of it. When you lose the game of love at the office, you still have to face the other person day after day. That constant reminder of a relationship that didn't work out is a painful burden to bear, and it can affect how well you are able to do your job, which is the main, if not sole, reason we're employed in the first place.

On this Valentine's Day, I thought I'd pick up the theme from the Business Week article and take a look at an example, courtesy of the 7th Circuit's decision in Benders v. Bellows & Bellows, of some of the problems a company might face when an office romance goes south.

Bellows & Bellows is a Chicago law firm that concentrates in, of all things, employment law. The two Bellows, Joel and Laurel, are husband and wife. In 1996, B&B hired Evelyn Benders, an African-American women then in her 40s, as a legal secretary; she was promoted to office manager the following year. Shortly after she started with the firm, Benders started a five-year relationship with Mr. Bellows. Benders remained employed after the relationship ended.

Approximately two years after the break-up, in May 2003, Mr. Bellows privately informs Benders that his wife and another partner were "campaigning to get [her] out" and that she should begin to look for another job. A few weeks later, B&B hired a white woman 10 years Benders' junior who began to take over some her of responsibilities. In February 2004, Benders filed an age and race discrimination charge with the EEOC relating to the new hire and her loss of responsibilities. Attached to her charge were e-mails authored by her former lover referring to Benders as "Seabiscuit" who "should have been put down" long ago, and stating that other African-American members of the office staff were making Benders' employment situation "a racial thing."

After Benders filed the charge, she claims that Mr. Bellows became increasingly hostile towards her and made her working conditions difficult. According to B&B, however, it was Benders who caused problems by becoming disruptive and insubordinate, not actively seeking other employment, and not performing certain job duties. Three days after B&B filed its position statement with the EEOC, Benders alleges that Mr. Bellows told her that because she had filed an "awful EEOC charge" he would not consider paying her any severance.

Five days later B&B finally terminated Benders' employment. According to B&B, Benders was asked to leave because a day earlier she had become hostile with Mrs. Bellows, who subsequently told her husband that she would not come to the office until Benders was fired. Benders' retaliation claim followed shortly thereafter.

Ultimately, the appellate court reversed the trial court's dismissal of Benders' retaliation claim on summary judgment. Specifically, the Court found that Mr. Bellow's comment about her "awful EEOC charge" coupled with her termination five days later created a factual issue on the issue of causation, whether there was a nexus between her EEOC charge and the termination. Also, the Court found enough of a factual dispute on whether Benders was actually under-performing and acting insubordinately.

While the opinion is not clear, it's pretty apparent that Mrs. Bellows knew about her husband's dalliance with Benders and wanted to rid her business of her husband's former lover. Can anyone really doubt that the broken relationship had something to do with Benders' demotion and subsequent termination? This case paints a picture of some of the dangers associated with office romances. The problems in this case were exacerbated by the fact that it involved an executive and a staff member. Relationships between co-workers are less tricky, but still pose their own problems. Because it is not illegal for co-workers to be romantically involved, how a company handles these issues is organizational. But, if a company is going to permit intra-office romances, it is best that it does so with eyes wide open, in tune to the various legal issues that can arise if a romance goes bad, as the Benders case points out.

EEOC targets use of arrest and conviction records

Last year, the EEOC launched it E-RACE Initiative. E-RACE stands for Eradicating Racism And Colorism from Employment. According to the EEOC:

The E-RACE Initiative is designed to improve EEOC's efforts to ensure workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.

One barrier that the EEOC identifies as contributing to race and color discrimination is employers' use of arrest and conviction records in hiring decisions. To remove or limit this barrier, the EEOC has set a 3 year goal to "develop and implement investigative and litigation strategies to address selection criteria and methods that may foster discrimination based on race and other prohibited bases, such as ... arrest and conviction records." In other words, the EEOC intends to litigate charges based on arrest or conviction records.

This EEOC initiative sets a dangerous precedent. I've always understood that using arrest records could cause a disparate impact, but that conviction records are fair game in employment decisions. E-RACE signals that use of the latter without a business necessity or job relatedness could also violate Title VII. This policy begs the question of what convictions are related to what job. Certain jobs are no-brainers. Anything with children will automatically disqualify a felon, for example. What about a warehouse worker, though? What is an employer's liability if a violent felon recidivates in the workplace? What about non-violent felons? Do you want a check kiter manning your cash register? These are difficult questions without easy answers. I'd like to give the EEOC the benefit of the doubt on this issue, but when it makes litigation a key cog in this initiative, it makes me nervous for companies that rely on criminal histories in employment decisions. For now, the safest course of action would be to tailor the use of specific convictions to related jobs. Practically, however, I doubt the feasibility of such limits, given the liability issues that swirl around the edges of such hires.

[Hat tip: Human Resource Executive Online]

Penny-wise, pound-foolish employment practices

Rush Nigut of Rush on Business shares some words on wisdom for businesses on doing things right on the front end versus paying a lot more to fix them on the back end. His advice is tailored to general business issues, and it got me thinking about what employers can do proactively in their workplaces to avoid the headaches of litigation and its high costs. It may cost some legal fees up front to have an attorney bring your workplace into compliance, but that cost pales in comparison to what it would cost in legal fees to defend a bad policy or practice in litigation.

1. Review and update handbooks, policy manuals, and forms (such as applications, FMLA forms, background check authorizations, etc.). While the Internet provides a wealth of business resources, using canned materials can be dangerous. One does not know who prepared the materials, if a lawyer reviewed them, and if they were reviewed, under which state's law the review was conducted. Laws change almost daily; it's dangerous to assume that free forms on the web are reviewed and updated that frequently.
2. In this era of electronic discovery, a document retention and destruction program is a must. If documents are destroyed during litigation, even accidentally, it is virtually impossible to explain that destruction to a judge if you don't have a retention policy and a workable litigation hold in place. Lawyers need to be involved early in this process to advise how long to keep documents outside of litigation, and what documents need to be kept when litigation becomes reasonably anticipated.
3. Implement a harassment training program, which includes a basic review of policies for new hires, and comprehensive training for all employees at least once every two years. A quick trip back through my archives will reveal how companies get tripped up by not providing this essential training. In my experience, employees tend to take this issue much more seriously when a lawyer is presenting as opposed to a co-worker.
4. Audit job descriptions and employee classifications for wage and hour compliance. Again, my archives are filled with wage and hour nightmares. Wage and hour litigation has become the hot employment claim for 2007 and beyond. It's naive to think that at some point your company will not have a wage and hour issue to deal with. Better to get your hands around it now than when a class action or the Department of Labor forces your hand.
5. Make sure that all managers and supervisors properly document all performance problems. This point should be self-evident, but it always amazes me how many issues I have with empty personnel files for so-called problem employees. A quick call to counsel to confirm whether an employee can be terminated would save a lot of heartache in having to defend a poorly documented firing.

Rush Nigut, citing to Chris Moander of the Wisconsin Business Law and Litigation Blog, sums up this idea by reminding businesses that they can pay for it now, or pay a lot more for it later: "Many business people sadly lump legal services into the 'too costly' or 'unnecessary' categories when it comes to starting or running a business. And while good legal services are not cheap it may actually save you in the long run.... It costs a lot more to repair ... than to do it right in the first place." I could not have said it better myself (which is why I didn't).