When loose lips sink defense ships

“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.

“Buyer’s regret” as an adverse employment action

Nearly a year ago, in Deleon v. City of Kalamazoo, the 6th Circuit decided that an employee could claim discrimination when he was “involuntarily” transferred into a position for which he had earlier voluntarily applied. 

At the time, I thought it was one of the worst decisions I had ever read.

Yesterday, the Supreme Court decline to review the Deleon case. Typically, these denials are unceremonious affairs, with nary a word other than “denied” pronounced. Justice Alito, however, apparently agreeing with my assessment of the 6th Circuit’s decision, took the rare occasion to draft a dissent to the denial (pdf here). This is what he wrote:

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

No termination is perfectly insured against a lawsuit. Some are more high risk than others (and those should be accompanied by an offer a severance package in exchange for a release of claims). Even the easiest decisions, however, carry some amount of risk. On any given day, any judge or jury could agree with the employee and decide against you. You job as an employer is to balance the risk of a lawsuit against the risk of keeping an employee employed and make a reasoned, informed decision about whether to retain, fire, or fire with a severance offer. And, please, don’t have buyer’s regret.

[Hat tip: Phil Miles’s Lawffice Space] 

Is “wife swapping” a protected class?

Although we are only 8 days into 2015, Lowering the Bar brings us what might be the lawsuit of the year:

According to the complaint, the plaintiffs are “lifelong friends” and in the course of socializing, each of them fell in love with the other’s wife and the wives felt similarly.… The new living arrangements have been established; divorces are planned but have not yet been obtained. 

Although everyone involved is said to be perfectly happy with the situation, the plaintiffs allege that their employers were not, and “placed them both on unpaid administrative leave due to their co-habitation with a woman who is not their wife.” … Plaintiffs also allege they were told that if and when they returned to work, they would be demoted, and would have to “cease all contact” with the former co-habitors until such time as they obtained divorces.

The lawsuit—Coker v. Whittington [pdf]—is a constitutional civil rights action alleging that the discrimination is based on religion and violates the employees’ right to privacy and freedom of association.

Regardless of the legality of the termination (and I'm not convinced this employer did anything illegal), this lawsuit illustrates the pitfalls that face an employer that imposes its moral worldview on employees. An employer has no business firing employees because it disagrees with how they choose to live their private lives. Assuming that their private lives do not affect their job performance, it should not impact their employability. Next time you want to take a stand against an employee for how he or she chooses to live his or life outside of work, think again.

6th Circuit rules in favor of nonprofit in discrimination claim brought by volunteers

In Bryson v. Middlefield Volunteer Fire Dep’t, the 6th Circuit held that a “volunteer” can qualify as an employee covered by Title VII under certain limited circumstances. In making that determination, a court must examine not only whether the volunteer is paid, but also the degree of control exercised by the employer over the manner and means by which the work is accomplished.

Last week, in Sister Michael Marie, et al. v. American Red Cross [pdf], the same court applied that test to uphold the dismissal of the Title VII religious discrimination, retaliation, and harassment claims filed by two nuns against the organization for which they had volunteered. In concluding that the two plaintiff-nuns were bona fide volunteers, and not employees, the court heavily relied on the lack of compensation paid by the Red Cross, coupled with its inability to control their performance via termination of employment or threat thereof.

An employer’s ability to terminate a non-compliant employee, which is perhaps an employer’s greatest source of control, is meaningful because the employee stands to lose not only her job, but also the source of income upon which she depends…. Though we make no attempt to resurrect the economic realities test from the grave, its  central teaching remains instructive…. The economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance.

While you might think it’s cold to conclude that two nuns could not pursue discrimination claims, this case makes a broader policy statement in favor of nonprofit organizations. The lifeblood of nonprofits is their volunteer base. Without the aid of volunteers, nonprofit organizations, which operate on limited budgets and scant resources, would not survive. If volunteers could easily sue these organizations for discrimination or other employment-related claims, nonprofits would be much more reluctant to use the services of volunteers to staff their needs, thus making it much more difficult for them  to carry out their missions and provide their essential services.

By relying heavily on the lack of payment to show lack of control, the 6th Circuit drew a line that will be difficult for most bona fide volunteers to cross to demonstrate employment status. And while no organization should discriminate against anyone providing services to it, this case decides that the public good done by nonprofit organizations outweighs the public policy against employment discrimination.

“I honestly bet you’re big down there.” SNL tackles workplace diversity training.

NBC does itself a disservice by running classic episodes of Saturday Night Live each week, because the old episodes merely reinforce that the new episodes are longer appointment viewing. But, this sketch on diversity training (spoofing some very bad VHS videos you hopefully didn't use during the last millennium) from this past week’s episode made me laugh pretty hard. Enjoy.

 

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.

The best defense to a discrimination claim is…

Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.

Ohio Supreme Court punts on individual discrimination liability … for now

Earlier this summer, I reported on Hauser v. City of Dayton, which I hoped would answer the question of whether Ohio’s employment discrimination statute still provided for individual liability for managers and supervisors.

Last week, the Court issued its ruling in Hauser, and, disappointingly, punted on the issue. Yes, the employer technically won the case, and the Court held political-subdivision employees (i.e., public-sector workers) are immune from discrimination lawsuits.

On the bigger question, however, of whether Revised Code chapter 4112 imposes liability on managers or supervisors in general, the Court punted. It concluded that it did not have to revisit Genero (the case that originally concluded that 4112 imposes liability on individual managers and supervisors), because the employer in that case was in the private sector. Nevertheless, the Court concluded that its “reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII.”

For now, Genaro and its imposition of individual liability lives to fight another day. Private-sector managers and supervisors can still be sued for their own individual acts of discrimination. Moreover, Ohio employers are now split down public / private lines as to whether managers and supervisors can be held individually liable for discrimination.

Yet, Ohio employers have hope that when presented with the right case, this Court will overturn Genaro and rid Ohio of its anomalous individual liability. Or, Ohio’s legislature can do right by our state’s employers and pass legislation ending this incorrect interpretation of R.C. 4112, which will bring Ohio into line with the discrimination laws of nearly every other state and Title VII.

Hear what I had to say on @WCPN about #BanTheBox

Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.

Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.

Here you go.

Thanks Mike McIntyre for having me on. Let’s do it again soon.

Will the Ohio Supreme Court eliminate manager and supervisor liability for discrimination?

Ohio’s discrimination is unique in that it allows for the imposition of individual liability against managers and supervisors for their personal acts of discrimination. The case, Genaro v. Central Transport (1999), is the bane of defense lawyers and employers alike. Aside from adding a complicating element to cases by including employees in the matrix of sued parties, it also permits plaintiffs lawfully to add a non-diverse parties and keep cases from being removed to federal court.

There is hope, however, that Genaro may go the way of the dodo. Currently pending before the Ohio Supreme Court is Hauser v. City of Dayton. The specific question presented by this sex discrimination case is whether, under Genaro, Ohio’s employment discrimination statute imposes civil liability upon a manager or supervisor of a political subdivision, or whether such individual enjoys immunity as an agent of such subdivision. If the Supreme Court holds that Revised Code Ch. 4112 specifically imposes liability upon an individual manager or supervisor, then immunity cannot hold. Thus, the Court will have to decide whether Genaro is a valid interpretation of the definition of “employer” under R.C. 4112.01(A)(2).

The oral argument in Hauser offered few hints on how the Court might rule. For companies that have operations in Ohio, Hauser is the most important decision currently pending before the Ohio Supreme Court. To decide this issue of political subdivision immunity, the Court will necessarily have to pass judgment on the continued validity of Genaro and its imposition of individual liability. A ruling against the employee in this case would be a huge win for employers. The elimination of Genero would bring not only bring Ohio in line with federal law, but also with the overwhelming majority of states. It would bring a halt to the gamesmanship of adding individual defendants to lawsuits to keep claims away from federal court. My fingers are crossed that the Court does right by employers in this case. When the Court issues its decision, I’ll report back.

Will Hobby Lobby give Title VII fits?

Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores [pdf], holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible). Thus, the plaintiff was able to rely on its religious beliefs to opt out of the requirement of the Affordable Care Act (aka Obamacare) to provide healthcare coverage for contraceptives. 

The opinion is long, but worth the time to read. I want to focus, however, on Justice Ginsburg’s scathing dissent.

Justice Ginsburg believes that the majority’s opinion is not limited to the ACA’s contraceptive mandate, but instead will enable any company to opt out of any non-tax law on the basis of a religious belief:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. 

What about Title VII and the other ant-discrimination laws? What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Would Hobby Lobby permit those employers to opt out of Title VII? Hobby Lobby does not answer these questions. Instead, it leaves them to lower courts to interpret in future cases. We will have to watch and see how these issues play out down the road.

I agree, however, with Justice Ginsburg, that we need to worry about how companies will try to use this opinion to opt out of laws they do not like. I am concerned that this opinion could lead to a slippery slope of companies using religion to pick and choose laws based on their socio-political beliefs, which could undermine our civil-rights laws, and is antithetical to the First Amendment religious freedoms upon which out country was founded.

U.S. Chamber of Commerce challenges EEOC over its “unreasonable” enforcement tactics

I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics (for example, here, here, here, here, and here).

Earlier this week, the U.S. Chamber of Commerce published a 25-page report [pdf] (h/t Wall Street Journal), in which it challenged the EEOC on its “unreasonable” enforcement tactics. According to the Chamber, its analysis of the EEOC’s enforcement and litigation strategies “reveals an agency which often advances questionable enforcement tactics and legal theories.” For example:

• EEOC will pursue investigations despite clear evidence that any alleged adverse action was not discriminatory—such as terminating an employee caught on videotape leaving pornography around the workplace.
• EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.”
• A federal case in which the judge criticized EEOC for using a “sue-first, prove later” approach. 
• A federal case brought by EEOC which the judge described as “one of those cases where the complaint turned out to be without foundation from the beginning.” 
• A federal case in which the judge criticized EEOC for continuing “to litigate the … claims after it became clear there were no grounds upon which to proceed,” describing the EEOC’s claims as “frivolous, unreasonable and without foundation.”

The report also challenges the EEOC’s amicus program, in which, according to the Chamber, federal courts rejected the agency’s legal interpretations (premised on its formal enforcement guidance and other policy statements) approximately 80% of the time.

From all of this data, the Chamber concludes:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However, … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of “too little, too late”: by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose.… 

What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national origin discrimination and credit-related background checks.

While the entirety of the 25-page report is intellectually interesting to employers, it doesn’t mean a hill of beans if the EEOC sues you. As we all know, lawsuits are expensive. It could cost you millions of dollars to prove the EEOC wrong. I doubt you want to spend millions defending one lawsuit? So what are you to do? Sadly, you are to do what the EEOC says, or risk ending up in the agency’s money-vacuum crosshairs.

Yet, I believe that the EEOC does not care how many times federal courts rebuke its litigation tactics—that the mere threat of an expensive enforcement action is sufficient deterrent for the agency to put forth its enforcement agenda. For example, is the EEOC correct that credit and criminal checks always have a disparate impact on minorities, no matter why an employer uses them? Probably not. But, the alternative is a potential million-dollar lawsuit. The agency is making law by the threat of lawsuits. This legislation-by-extortion is dirty pool, and undermines all of the good the agency does to promote equal rights for all in employment.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

Please, please, please … be careful what you email

Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion, Michael emailed his sister, “You demoted Darren without telling me? … Darren is a good worker, too bad he’s male.”

Based on that email, the court—in Wyss v. Compact Indus. (S.D. Ohio 3/12/14)—had little trouble denying the company’s motion to dismiss the sex discrimination lawsuit.

It is reasonable to infer that Michael Brown knew of his sister’s motive for demoting Wyss and was referring to that motive in this email. This plausibly suggests that the decision to demote Wyss, who was otherwise a “good worker,” was motivated by Tracey’s intent to discriminate against men. 

Nothing good comes from putting statements like “too bad he’s male” in emails, or text messages, or voice mails, or any other form of communication. Those words should never leave your lips, let alone flow forth from your fingers in anything typed. Michael Brown may have a logical, non-discriminatory explanation for his statement … or at least he better before he gives his deposition. Even with an explanation, however, his misstep makes his company’s case that much more difficult. Do your damndest to avoid the same miscue.

You can’t always get what you want … but even when you do it’s an “adverse employment action”

Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?

Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”

[A]n employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….

We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

Are graduate assistants employees or students?

In Al-Maqablh v. University of Cincinnati College of Medicine (11/5/13), an Ohio federal court answered the question of whether graduate assistants are employees entitled to the protections of Title VII. As with most legal question, the answer depends.

The case concerned the race and national origin claims of a grad student placed on academic probation and ultimately dismissed from the University. Al-Maqablh sought Title VII’s protections as an employee because he “received a paycheck from the University and rendered services to the University by performing extensive research through lab work.” The court, however, disagreed:

Plaintiff received a stipend and/or scholarship after being accepted into the Program. Plaintiff has failed to show that this pay stub was based upon is employment with the University and not a portion of his stipend award. Furthermore, the fact that Plaintiff performed extensive research, as required under the Program, does not make him an employee under Title VII.

Instead, the court looked to the “economic realities” of the relationship between Al-Maqablh and the University to determine whether he was an employee or a student:

Plaintiff participated in the Graduate Program as a student engaging in “courses, seminars and laboratory research during the academic year.” … More importantly, the dominant purpose of Plaintiff’s relationship with the University was educational. Plaintiff’s complaint against the University asserts claims solely related to his academic activities as a graduate student…. [T]he undisputed evidence establishes that the University’s decision to dismiss Plaintiff from the Graduate Program was an academic decision unrelated to Plaintiff’s alleged employment with the University. As such, the undersigned finds that Plaintiff should not be considered an employee under Title VII....

Thus, in this case, the graduate assistant was a student, not an employee. The court made the point, however, that this rule is not universal; the status of a graduate assistant must be analyzed based on the “economic realities” of each individual. If the University had paid Al-Maqablh for his services (as opposed to providing him an academic scholarship), or if the University had dismissed him for an employment reason, as opposed to an academic, reasons, this case likely would have turned out differently.

If you are an educational institution using the services of graduate assistants, do not make this mistake of reading this decision as providing carte blanche to discriminate against graduate assistants (indeed, Title IX would instruct you differently). Instead, understand that these rules are fact specific, and seek legal counsel to guide your actions accordingly.

 

An endgame for ENDA?

Today could prove to be a historic one for civil rights. According to reports, the Senate is likely to vote later today on the Employment Nondiscrimination Act [pdf]. ENDA, as it’s more commonly known, would amend Title VII to include protections for sexual orientation and gender identity. Early reports indicate that it could have enough support to pass in the Senate (even my home-state Republican Senator, Rob Portman, has indicated he may vote for it). Whether it can pass the Republican-controlled House and make it to President Obama’s desk for signature is another story. Trying to do his part, President Obama has penned an article for the Huffington Post urging both houses of Congress “to vote yes on ENDA.”

Those who have read my earlier thoughts on ENDA know that I’ve long preached that I believe it’s shameful that in 2013 there still exist minorities against who the government says it’s legal to discriminate. Critics of ENDA argue that it’s not necessary to impose legislative burdens on employers because most already prohibit this form of discrimination via their own internal policies, or because state and local jurisdictions that have passed similar laws do not report an increase of claims.

To these critics, I say that you miss the point. Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.

Perhaps Apple CEO Time Cook put it best in a Wall Street Journal Op-Ed urging for ENDA’s passage:

So long as the law remains silent on the workplace rights of gay and lesbian Americans, we as a nation are effectively consenting to discrimination against them.

As an advocate for employer rights, it’s rare that I’m in favor of increased regulations on businesses. Yet, this legislation is a no-brainier. As we approach the 50th anniversary of Title VII, now is the time to tell our workers that we, as a nation, support equality among all, including the LGBT community. Otherwise, the very principle upon which our country was founded (that all people are created equal) is nothing but a sham.

I will update the blog after the Senate holds its vote on ENDA.

Federal court slams the door on EEOC’s criminal background check lawsuit

In EEOC v. Freeman (D. Md. 8/9/13) [pdf], the U.S. District Court for the District of Maryland dismissed a race discrimination lawsuit filed by the EEOC. Consistent with its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, the EEOC alleged that Freeman’s criminal background checks on all job applicants violated Title VII by disparately impacting African-American job seekers.

In dismissing the lawsuit, the Court focused on the factual failings of the EEOC’s statistical expert. Eric Meyer’s Employer Handbook Blog has the details of the Court’s opinion.

The opinion also provides the most scathing indictment to date of the EEOC’s position on the use of criminal background checks by employers. Despite its length, it’s worth reprinting in its entirety.

For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable….

The present case is only one of a series of actions recently brought by the EEOC against employers who rely on criminal background and/or credit history checks in making hiring decisions. For example, in two recent complaints filed against discount retailer Dollar General Corp. and car manufacturer BMW, the EEOC claimed that those employers improperly used criminal background checks to bar potential employees, resulting in a disparate impact on African-American applicants….

Indeed, the higher incarceration rate [of African-Americans than Caucasians] might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions….

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

This case is an important first step towards a reasoned and rational understanding of the role of criminal background checks for employers. The Freeman case, however, will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts, and, hopefully, the Supreme Court, to have the final say.

In the meantime, employers need to understand that criminal background checks are the EEOC’s hit list. Regardless of how this issue ultimately plays out, using a conviction record as a disqualifying factor for employment without engaging in the individualized inquiry required by the EEOC’s Enforcement Guidance will raise the EEOC’s ire and could subject an employer to an enforcement lawsuit.

I am hopeful that, in the end, common sense will prevail and rescue employers from the Hobson’s choice recognized by the Freeman court. Until then, these practices remain risky. Employers will have to balance the risk of an EEOC enforcement action against the benefit to be gained from the access to and use of criminal conviction records in hiring and employment.

Giving Employee the “Milton Treatment” Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire...

– Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

This post originally appeared on The Legal Workplace Blog.