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).

DOL publishes proposed new FMLA regulations

Weighing in at an astounding 477 pages, the Department of Labor has published its proposed new FMLA regulations. According to the DOL, these regulations will "preserve[] workers' family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace." They seem to be an improvement over the current regime, although they are far from perfect. These regulations are not final, and will be subject to at least a 60-day comment period.

If you don't have the time or the willpower to sift through 477 pages to figure out the impact these regulations will have on your FMLA responsibilities, here are some of the high points:

• Except in emergency situations, employees will be required to follow the employer's policy for notification of FMLA leave, eliminating employees' ability under the old regulations to take up to 2 days after an absence begins to notify their employer that they intend to take FMLA leave. This change will greatly improve employers' ability to plan and schedule around employees' medical leaves.
• Employers will be able to directly contact employees' doctors when employers have questions about FMLA medical certification forms that the doctors have filled out. Employers will no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee's doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.
• To employers' dismay, the regulations do not change the time increments in which employees can take intermittent leave, but do require that an employee using intermittent leave use the employer's regular call in procedure except in emergencies. Thus, employees will still be able to take intermittent leave in very short increments, continuing for employers the administrative nightmare of intermittent leave, albeit with some additional notice.
• Employers will be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of annually.
• Currently, the clock under which employees accrue their 12 months of service for eligibility has no time limit, even after multiple breaks of service. Thus, if I work for 6 months for a company, and return 10 years later, I am eligible for FMLA leave after another 6 months. The new regulations place a 5-year cap on years of service for calculating eligibility, except for military or childrearing leaves, or where rehiring is covered by a collective bargaining agreement.

The DOL is also soliciting input on how it should handle the recent FMLA expansion for military-related leaves of absence. For the adventurous, the complete proposed regulations are available for download here.

[Hat tip: Jottings by an Employer's Lawyer].

Retaliation decision underscores importance of termination discussions

A couple of weeks ago, the 6th Circuit held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation (see 6th Circuit holds that temporaral proximity alone is sufficient to show a causal nexus in retaliation cases). Today, that same court, in Imwalle v. Reliance Medical Products, illustrates the converse of Mickey v. Zeidler Tool & Die, what additional evidence will prove a nexus when temporal proximity alone is not enough. It also highlights the importance of carefully watching one's words in termination meetings, and how saying the wrong thing can come back to haunt you.

Imwalle concerns a corporate president who was terminated from his long-tenured position 3 months after he filed an age and national origin discrimination charge with the EEOC. During the termination meeting, the COO told Imwalle: "I know that you know that Haag-Streit (HS) never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim. We are not discriminatory, just not."

The Court relied heavily on that statement in affirming the jury's verdict in Imwalle's favor on his retaliation claim:

[T]he fact that Ott made this statement about Imwalle's discrimination complaints at such a critical moment raises questions about Haag-Streit's true motivation for firing Imwalle.

On the one hand, the statement can be taken at face value, made solely for the purpose of assuring Imwalle that his firing had nothing to do with the alleged discrimination on the part of Haag-Streit because such discrimination purportedly did not exist. But another plausible explanation for Ott's statement is that Imwalle's discrimination claim had caused both frustration and resentment on the part of Haag-Streit, and that Ott's statement was designed to mislead Imwalle and discourage him from suing. Ott obviously felt strongly enough about the accusations of discrimination to prepare a written statement and read it as the first order of business at the meeting he called to let Imwalle go.

Furthermore, the timing of the statement, literally moments before Imwalle was notified that he was no longer President of Reliance or of HSH US and that his employment agreement was being terminated, clearly shows that Imwalle’s complaint of discrimination was at the forefront of Ott's mind.

While it's difficult to know what the COO's true motivation was, it's easy to understand how a jury could interpret the phrase, "I cannot understand why you raise such a claim," uttered while terminating Imwalle, as retaliatory. If the COO's intent was retaliation, then he did an awful job of hiding it. If, however, his intent was innocent, he should have chosen his words much more carefully. Use his mistake as a valuable lesson -- be careful what you say in a termination meeting, and even more careful what is written down. The words can, and will, be used, twisted, and construed against you.

What else I'm reading this week #17

I'm coming out this week smokin' -- or at least with a pair of posts about smoking. John Phillips' Word on Employment Law discusses some of the potential legal implications of smoking in the workplace. Should you think that you needn't worry about this issue since it is illegal to smoke in just about every workplace in Ohio, Representing Management gives us a tale of a lawsuit permitted to proceed under ERISA brought by an employee whose employment was terminated after he tested positive for smoking in violation of his employer's wellness program.

The Pennsylvania Employment Law Blog reminds us that in guarding against potential lawsuits, how you terminate an employee is often as important, if not more so, than the reason for the termination.

The Labor and Employment Law Blog gives us Part 2 of its series on how to avoid a whistleblower claim.

Workplace Privacy Counsel brings us information on whether dead employees' medical records are entitled to protection under HIPAA (short answer, yes).

Finally, Electronic Discovery Navigator provides helpful information on implementing record retention policies.

Blawgosphere criticizes workplace bullying laws

Since I blogged last week on workplace bullying (see Bullying boss justifies unemployment award), there has been a flurry of activity in the blawgosphere on this issue. This month's ABA Journal has an article discussing both sides of the anti-bullying movement, while Overlawyered and the Laconic Law Blog, like me, are critical of this initiative.

The Tennessee appellate decision cited in the ABA Journal article frames this issue best:

It is necessary to distinguish between harassment and discriminatory harassment to insure that discrimination laws do not become a general civility code…. If there is harassment in the work place, the burden is on the plaintiff to establish that such harassment is based upon one's age, race, sex or other protected class characteristic that is prohibited by the civil rights statutes. The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes…. Nothing in the record established that Ms. Doyle treated age-protected employees any differently than non-protected employees, rather, the testimony clearly showed that Ms. Doyle was an equal opportunity oppressor, using her intense, dominant, abrupt, rude, and hard-nosed management style on all St. Thomas employees. Disagreement with a management style alone, without evidence of a discriminatory intent or motive, no matter how disagreeable that style may be, is simply insufficient to warrant protection…. The Sixth Circuit has recognized that, "personal conflict does not equate with discriminatory animus," … and it has further emphasized that "it is important to distinguish between harassment and discriminatory harassment in order to ensure that Title VII does not become a general civility code."

Ohio Supreme Court holds that retained memory can constitute a trade secret

It has long been thought that under Ohio's trade secret statute, R.C. 1333.61, that which an employee holds in retained memory does not meet the definition of a trade secret. Thus, prior courts have differentiated, for example, between employees who remove documents or files and those who recreate the contents of those documents from memory. The former were covered by the trade secret statute, while the latter were not. This week, the Ohio Supreme Court, in Al Minor & Assoc., Inc. v. Martin, has upended this conventional wisdom, and in doing so has greatly expanded the enforceability of not only the trade secret law, but also noncompetition agreements.

R.C. 1333.61(D) defines a "trade secret" as:

[I]nformation, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

At issue in Al Minor & Assocs. v. Martin was whether a customer list compiled by a former employee strictly from memory can form the basis for a statutory trade secret violation. The Ohio Supreme Court unanimously answered this question in the affirmative, holding that information that constitutes a trade secret under R.C. 1333.61(D) does not lose its character by being recreated from memory. In reaching its conclusion, the Court relied upon the language of the statute, which does not differentiate between physical information and that which is reproduced from memory.

While this will change the landscape of trade secrets, it does not alter the longstanding rule that information which can otherwise be discovered through reasonable means does not qualify as a trade secret. Thus, customer lists often lose trade secret protection if they can be reverse engineered, such as by simply looking in the phone book. This decision, however, will make it more difficult for an employee to demonstrate that a customer list was reverse engineered, because of the fact that the fruits of such reverse engineering is often the product of the employee's memory.

This case will not only expand trade secret protection, but also the class of employees against whom noncompetition agreements can be enforced. One of the key factors that courts examine in the enforcement of such agreements is whether the agreement seeks to protect a legitimate interest of the employer. That component will be much easier to satisfy with the expansion of trade secrets to include retained memory.

This decision will be a boon for employers who want to protect information or lock up employees with noncompetition agreements. The flip side, however, is that employers must now be more diligent than ever in the hiring process. It will no longer be enough to simply ask that an employee not bring anything (documents, files, etc.) with him or her to a new job. At the same time, it is impossible to ask an employee to turn off his or her mind or erase his or her memory.

Thus, one possible unintended consequence of this decision will be an increase in the transaction costs of recruiting and hiring. Anytime an employee is recruited, that employee now has the potential to bring trade secrets with him or her in memory. The recruiting process might now have to include the former employer in the hiring process to ensure against any future legal claims concerning retained memory trade secrets. Otherwise, I don't know how an employer hiring anyone who had access to anything that could remotely be construed as a trade secret can have any comfort level with the hiring.

Carnival of HR #26 is available

This post comes to you from the Holiday Inn Express in Tulsa, Oklahoma. Three Star Leadership Blog has posted the 26th Carnival of HR. It includes posts on predatory employees, the problems with bored employees, 10 ways to screw up a performance appraisal, and a post from yours truly on bullying bosses and unemployment compensation. I recommend that everyone take a few minutes to click over to the Carnival and read some of the best HR posts from the past few weeks.

Don't confuse "family status" for "family responsibility discrimination"

I've blogged a lot on "family responsibility discrimination," which is discrimination against parents or caregivers because of their status as such. "Family responsibility" or "caregiver status", however, are not protected classes in and of themselves. They are only illegal if the alleged conduct otherwise violates Title VII or the ADA. In other words, the law prohibits discrimination on the basis of race, sex, religion, national origin, ancestry, color, age, and disability. Thus, for example, it is not illegal to discriminate against all parents because of their parental status, but only if you treat moms differently than dads, or black parents differently than white parents, or parents of disabled children different than parents of non-disabled children.

Adamson v. Multi Cmty. Diversified Servs., Inc. clarifies this important distinction. In that case, decided last week by the 10th Circuit, the plaintiffs, a husband, wife, and daughter who were terminated by a non-profit organization, claimed that "familial status" is a protected classification under Title VII. The Court rejected that argument:

Title VII protects neither the family unit nor individual family members from discrimination based on their "familial status" alone…. "Familial status" is not a classification based on sex any more than is being a "sibling" or "relative" generally. It is, by definition, gender neutral. The use of gender to parse those classifications into subcategories of "husbands, wives and daughters" is a social and linguistic convention that neither alters this fact nor elevates those subcategories to protected status. Mr. Adamson’s claim that he was terminated in violation of Title VII based on his status as Patricia's "husband" (and Jessica's "father"), and Patricia and Jessica's claims that they were terminated by virtue of being Barry's "wife" and "daughter," respectively, fall outside the scope of Title VII and its purpose in protecting employees against invidious discrimination on the basis of sex, and we reject those claims….

Thus, an employer that discriminates against an individual solely on the basis of his or her "familial status" violates no law, unless the discrimination is tied to some specific protected class.

Appeals court allows ex-employee's retaliation caim to proceed based on the filing of a lawsuit against an employer

Retaliation cases continue to be one of the hot button employment law issues. This term, the Supreme Court has agreed to hear three separate retaliation cases. (See Retaliation Cases Hit High Court En Masse). Not to be outdone, the Ohio Supreme Court has handed down several important retaliation decisions in the past few months, including one which held that an employer's lawsuit against an employee who has engaged in protected activity is not retaliation if the employer has an objective basis for filing the lawsuit. On the issue of brining a lawsuit against an employee, I have cautioned, "The decision of whether to file a claim against an employee or ex-employee is not an easy one, and should not be undertaken without careful thought, a clear strategy of the goals to be achieved, and consideration of whether those goals are worth the risk of defending against a likely retaliation claim or the perception in court that the counter-suit is merely retaliatory." These words ring more true than ever after last week's decision by the 4th Circuit in Darveau v. Detecon, Inc., which permitted an employee's retaliation claim based on a lawsuit filed by the employer.

Larry Darveau filed a complaint against his former employer employer, Detecon, seeking compensation for unpaid overtime under the Fair Labor Standards Act. Two weeks later, Detecon filed an action against Darveau, alleging fraud arising out of a sales contract whose termination Darveau allegedly hid to meet his goal for an annual bonus. In response, Darveau amended his own complaint to include a retaliation claim, contending that Detecon's lawsuit constituted retaliation under the FLSA in violation of 29 U.S.C. § 215(a)(3). That section makes it unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." Because Darveau's complaint alleged that Detecon filed its lawsuit with a retaliatory motive and without any reasonable basis in fact or law, he stated a proper reclaim and the district court improperly dismissed the retaliation claim.

Detecon argued that it could not retaliate against Darveau because he was no longer its employee when it filed its lawsuit against him. The 4th Circuit roundly rejected that position:

Somewhat surprisingly, Detecon contends that looking to the Supreme Court's Title VII jurisprudence in this FLSA case will generate the "anomalous result" of extending protection from retaliation to former employees who no longer enjoy the substantive protections of the FLSA. Yet in Burlington Northern, the [Supreme] Court rejected this very argument in the Title VII context, observing that Title VII's anti-retaliation provision serves a different purpose than its substantive provisions and that such "differences in ... purpose ... remove any perceived 'anomaly.'" The more unfortunate anomaly would be if an employee’s underlying FLSA claim could be brought after he quit, but the employee's protection from retaliation ended when the employee stepped beyond the employer's doorstep. ... There is nothing in the language or history of [the FLSA] to indicate that Congress intended to penalize dissatisfied employees who voluntarily leave an employer by thereafter denying them the protections of [the Act]. There is every reason to conclude precisely the contrary.

This case reminds us that retaliation does not end when employment ends, because an employee can be chilled from exercising protected rights long after he or she leaves one's employ. It also underscores the myriad legal problems that companies potentially face when choosing to pursue a claim, meritorious or not, against a current or former employee.

The importance of confidential settlement agreements

Kathleen Peratis at the Jewish Daily Forward is proposing the passage of legislation to prohibit settlement agreements in employment discrimination cases from containing confidentiality clauses, and requiring their filing with a court so that they are publicly available. Her rationale is that because most of the enforcement of our civil rights laws is done by private lawsuits, the confidential settlement of those lawsuits chills public knowledge about discriminatory misconduct and the enforcement of the laws against it. In Ms. Peratis's own words:

Lately, however, a new and alarming flaw has emerged, a flaw that urgently warrants response: Although the number of employment discrimination cases filed has nearly tripled in the last 10 years, the amount of public information about them has dwindled to practically nothing. About 70% of employment discrimination lawsuits are settled — less than 4% actually go to trial — and nearly all settlement agreements require strict "confidentiality," meaning no one can reveal the terms of the settlement, including the amount paid to the plaintiff.

Thus, an important aspect of civil rights enforcement has become invisible. A weak system has become a secret system, and the public interest is suffering. None of this was supposed to happen.

"Employment discrimination statutes were not envisioned to promote secret settlement," says Minna Kotkin, a law professor at Brooklyn Law School who has studied the issue. "The whole thrust of the legislation was that, by facilitating employee suits, discrimination would be brought to public attention and the litigation process would serve to deter other employers from similar conduct." ...

With secret settlements, the penalties for job discrimination become invisible. Deterrence value is squandered. After expenditure of judicial resources and perhaps a blaze of media coverage, the silenced victim appears to say, "Oh, never mind." The general public comes to believe, as some surveys suggest, that employment discrimination is a thing of the past, attitudes of jury pools are skewed, and the chances of success for the next victim are diminished....

The problem has an easy fix: Prohibit the parties from withdrawing or dismissing any employment discrimination lawsuit unless the settlement agreement is filed as a public document with the court. Of course, as with all rules, there could be exceptions for good cause shown, but the default position would favor openness.

Ms. Peratis correctly points out that most employers will not settle an employment claim without confidentiality, perceiving that public knowledge of a settlement will only encourage others to bring claims. Her argument, however, has several key flaws, each of which underscores why I oppose her proposal.

First, it rests on the faulty premise that all settled claims have merit. Nothing could be further from the truth. Confidentiality is a necessary component of settlements to deter the disgruntled employee from filing a questionable lawsuit to make a quick dollar. Confidentiality has no effect on whether those who are being discriminated against, or perceive they are being discriminated against, will file a lawsuit. That class of employees will still seek lawyers, and those claims will still be filed.

Secondly, information about lawsuits is already publicly available. All court dockets are open and available to anyone who wants to go to the courthouse or, in most cases, to anyone who can access the Internet. The mere fact that a lawsuit has been filed serves Ms. Peratis's purpose of keeping the public informed about workplace discrimination claims.

Finally, while according to Ms. Peratis only 4% of employment cases proceed to trial, the jury verdicts for those that are successful are routinely large and frequently reported in the press. You tell me which of the following will have a greater impact on the likelihood of an employee filing a lawsuit - a tiny docket entry noting a $10,000 nuisance value settlement that no one will ever find unless they are specifically looking for it, or a front page article about a $16 million discrimination verdict? Indeed, if what Ms. Peratis says is correct, and the number of employment discrimination cases filed in the last 10 years has tripled, how can this alleged secrecy be a problem?

[Hat tip: Professor Paul Secunda at the Workplace Prof Blog]

Bullying boss justifies unemployment award

It has long been accepted that our discriminations laws do not set forth "a general civility code for the American workplace." (Oncale v. Sundowner Offshore Services). Certain fringe groups hope to change this by passing anti-bullying legislation (see Sticks and stones may break my bones...). Nevertheless, as it stands now, employees cannot sue their employers for bullying or being abusive unless the harassment is because of sex or some other protected class.

This week the Summit County Court of Appeals, in Ro-Mai Industries, Inc. v. Weinberg, awarded unemployment compensation to an employee who quit his job because he could not deal with his admittedly abusive boss.

According to the opinion:

Weinberg accepted a position at Ro-Mai after interviewing with Maier. Weinberg, who had extensive experience in sales, was told that his position at Ro-Mai would involve sales work and would require him to be at the office from approximately 8:00 a.m. to 5:00 p.m. After a few days of work, however, it became clear that Weinberg's actual duties differed from the job description that he received. He was not given any sales work and he often worked well over the nine hour shift that he was promised. Moreover, Weinberg discovered that Maier had a habit of yelling at the employees. Although Weinberg told Maier that he did not appreciate being treated in such a manner, Maier continued to yell.

On November 3, 2005, Weinberg informed Ro-Mai's head of human resources that he intended to quit. However, before Weinberg left the office Maier sought him out, promised to stop yelling at him, and convinced him to stay. Weinberg returned to work the next day, and Maier resumed his habit of yelling at him. Accordingly, Weinberg quit the following day….

Maier admitted that he often yelled at his employees. During the hearing, he stated: "When I hired [Weinberg], I told him I'm probably the worst employer to ever work for[.] I'm difficult. I expect a lot. And I warned him in advance that I'm very difficult…. [W]hen it comes to the business, I – I can yell. I did yell." Weinberg testified that when he complained to human resources about Maier’s yelling, he was told: "[O]h, it[] gets worse. That’s the way he is."

Maier’s yelling was not a single, isolated incident…. It was a repetitive problem that Weinberg unsuccessfully tried to address with Ro-Mai’s human resources department prior to quitting. Weinberg even agreed to resume work the first time that he intended to quit because Maier asked him to stay and promised to stop yelling. He did not abandon his employment without warning, or leave with utter disregard for the good of the business.

Thus, the Court concluded that Weinberg was justified in quitting his job because of his abusive boss and upheld his award of unemployment.

I've always subscribed to the law and economics model on the issue of bad bosses. Bad bosses beget transitory workforces and ultimately cannot succeed as bosses because of their revolving door. Good bosses create loyalty, retain good employees, and succeed accordingly. Imposing liability (even for unemployment comp) merely for being subjected to a bad boss sets a dangerous precedent that has the real potential to eliminate the "at will" from all such employment relationships.

What else I'm reading this week #16

Last week, I gave everyone my thoughts on IBM's reaction to its $65 million wage and hour settlement (An expectational argument for overtime pay). HR World has been kind enough to compile some other thoughts from around the blogosphere on this topic, and let's just say I'm decidedly in the minority.

The HR Capitalist comments on the pitfalls of political banter in the workplace.

John Phillips' Word on Employment Law has a timely post on how e-mails and instant messages can come back to haunt those who use their work computers for evil.

Tracy Coenen's Fraud Files comments on the extension of unemployment benefits under President Bush's economic stimulus package, and opines that it will actually hurt the economy by de-incentivizes people from working.

Suits in the Workplace discusses a 2nd Circuit case in which a doctor was found to be an employee and not an independent contract, and therefore covered by Title VII.

Finally, Workplace Privacy Counsel reports on the California Supreme Court's proclamation that an employee's legal use of medical marijuana does not insulate that employee from being terminated for failing a drug test.

6th Circuit holds that temporal proximity alone is sufficient to show a causal nexus in retaliation cases

It has been generally understood that in retaliation cases, temporal proximity alone does not establish the required causal connection between the protected activity and the adverse employment action. In Mickey v. Zeidler Tool & Die Co., decided today, the 6th Circuit has held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.

Charles Mickey, age 67, was a 33-year employee of Zeidler Tool & Die. After the company's owner, Harold DeForge, cut his responsibilities and pay following Mickey's refusal to retire, Mickey filed an age discrimination charge with the EEOC. DeForge first learned of Mickey's EEOC charge when he arrived at the company on the morning of October 19, 2004. When Mickey arrived at 7:30 that same morning, DeForge followed him into his office and immediately fired him. The district court dismissed Mickey's retaliation claim on summary judgment, relying on the proposition that temporal proximity, without more, is insufficient for a reasonable juror to concluded that DeForge would not have terminated Mickey but for the EEOC charge.

The 6th Circuit reversed that dismissal, ruling that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity, in and of itself, is significant to constitute evidence of a causal nexus. Contrarily, where some time elapses between when the employer learns of the protected activity and the adverse action, the employee must present other evidence of retaliatory conduct to establish the required causality. The Court explained its rationale for this distinction:

[If] an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation. Thus, employers who retaliate swiftly and immediately upon learning of protected activity would ironically have a stronger defense than those who delay in taking adverse retaliatory action....

In those limited number of cases–like the one at bar–where an employer fires an employee immediately after learning of a protected activity, we can infer a causal connection between the two actions, even if Mickey had not presented other evidence of retaliation.

Hedging its bets, the Court continued, and further reasoned that even if the nearly instantaneous temporal proximity was insufficient to establish the nexus, Mickey's alleged disparate treatment before DeForge learned of the EEOC charge also was sufficient evidence of a retaliatory motive.

A strong concurring opinion took the majority to task for its fall-back position:

"Retaliate," according to Merriam-Webster's Online Dictionary, available at http://www.merriam-webster.com/dictionary/retaliate (last visited January 24, 2008), is either a transitive verb meaning "to repay (as an injury) in kind," or an intransitive verb meaning "to return like for like; especially: to get revenge." One cannot repay or act in response to or get revenge for something that has not yet happened. No reasonable juror could conclude that DeForge intended to retaliate against Mickey for his filing the EEOC charge before he was aware that Mickey had done so, let alone before Mickey had undertaken the protected activity in the first place, and therefore, DeForge's actions prior to Mickey's filing of the EEOC charge cannot be evidence of retaliation for that protected activity. This evidence is immaterial to Mickey's retaliation claim and cannot be used to support it.

The impact of this decision will be fought over the meaning of the phrase "very close in time." The majority is vague in its understanding of that phrase. Employers will push very hard for Judge Batchelder's concurring interpretation: "[I]n a case in which the employer's learning of the protected activity is so closely followed by the employer's taking of an adverse action that the two are virtually contemporaneous — exactly the circumstances in this case — the temporal proximity between the two is alone sufficient to establish the causal connection necessary for the fourth prong of a prima facie case of retaliation." Employees, meanwhile, will push in the opposite direction and attempt to have courts stretch out the timeline.

We will have to wait and see where courts draw the line — minutes, as was the case in Mickey, days, weeks, or longer. It's hard to argue that Mickey presents a unique case, because the termination was a knee-jerk reaction to learning of the EEOC charge. The longer an employer allows an employee to stay on the job, however, the less likely a retaliatory motive exists, unless there is some other evidence of that motive. We will simply to have wait and see how long is too long.

Taking a look at bereavement leave policies

According to a 2007 Bureau of Labor Statistics report, 69% of private workers receive paid funeral leave. Yet, MSNBC.com is questioning whether companies are doing enough for grieving employees. The article suggests that businesses provide longer leaves (anywhere from 5 days up to as long as the employee needs) and including part-time employees. As support, it cites a study by the Grief Recovery Institute, which estimates that U.S. businesses lose more than $100 billion annually because of absenteeism, mistakes, and low productivity from workplace grief.

There is no law that requires a business to provide for bereavement leave. It is a benefit, and entirely up to the employer whether to provide for such leave at all, and if so, for how long, whether it is paid or unpaid, how wide to cast the family net, and whether to require an employee to provide proof of the death. How you choose from this menu of options will all impact employee morale, retention, and maybe productivity (although I question the agenda of the Grief Recovery Institute). As always, when you apply a bereavement leave policy, make sure it applied fairly and equally across the board to avoid any appearance of disparate treatment and a potential discrimination claim.