What else I'm reading this week #4

Wal-Mart - So Flexible They Provide a 1-800 Number to Call In Sick...., from The HR Capitalist, writing about the implications of Wal-Mart's call-in policy for sick workers.

One of the Better Headlines: Shirking Working: The War on Hooky, from Jottings By An Employer's Lawyer, discussing the on-going problem of employee hooky.

Watch for Legal Traps When You Leave a Firm to Work for a Rival, from CareerJournal.com, analyzing the practical implications of employees jumping ship to work for a competitor.

Staples Settles Overtime Claims for $38 Million, from the Manpower Employment Blawg, reporting on yet another astronomical wage and hour settlement.

Report: Female Employee Uses "Barenaked Ladies" to Harass Male Supervisor, from the Connecticut Employment Law Blog, under the rubric, "I can't make this stuff up," commenting how song lyrics by the Barenaked Ladies were used to sexually harass a co-worker.

House approves law to protect gay workers

35 Republicans joined 200 Democrats yesterday to pass the Employment Non-Discrimination Act of 2007, which falls short of the 280 total votes needed to override a likely Presidential veto.

The Act grants broad protections against discrimination in the workplace for gay men, lesbians, and bisexuals, making it illegal for employers "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation." It would put sexual orientation on the same footing as race, sex, religion, national origin, ancestry, age, and disability under the federal employment discrimination laws.

The version that passed the House did not contain measures to extend similar protections on the basis of gender identify, which would have included transsexual and transgender individuals. A broad exemption for religious organizations has also been written into the latest version of the Act.

Today's New York Times is reporting that Senator Edward Kennedy said he would quickly introduce a similar bill in the Senate, and that some Senate Republicans are saying that it could pass early next year if worded properly (whatever that means). Opponents of the bill claim that it will make it impossible to operate a business without having to worry about being accused of discriminating against someone based on their perceived sexual orientation.

While this blawg definitely has a pro-employer spin, it is hard to say in 2007 that it is acceptable to condone intentional discrimination of an innate characteristic such as sexual orientation. I don't intend to get into a debate about whether sexual orientation is a matter of genetics or personal choice. I frankly have no idea, and really don't care one way or the other. The point is that sexual orientation is the one characteristic against which discrimination is still generally allowed and accepted. By the same token, I understand the impracticalities of extending the same protections to gender identity. A company should not be forced to accept a man dressed in drag if that is not the image its wants to project, or if it think such an image will harm its bottom line by driving away business or customers.

The full text of the Employment Non-Discrimination Act passed by the House is available here.

Thorough harassment investigation secures dismissal of age claim

Bennett v. Saint-Gobain Corp., decided last week by the 1st Circuit Court of Appeals, illustrates the importance of timely and thorough investigations into harassment complaints.

David Bennett was a 62-year-old, British (more on the importance of this fact below), in house patent lawyer for Saint-Gobain. In June 2001, 16 months prior to his termination, Bennett joined a group internal age discrimination grievance filed against the company's deputy general counsel, who was alleged to have said that he wanted to get rid of the older members of the law department's IP group. The company took the grievance seriously, conducted an investigation, and dismissed it as unfounded.
Beginning in the fall of 2001, and continuing through the fall of 2002, another Saint-Gobain employee, Diana Henchey, received four anonymous, sexually tinged poems at work, which she described as unwanted and discomforting. Based on the British spelling of certain words (meagre instead of meager, for example), and a few short encounters with Bennett, Henchey concluded that Bennett might be the amorous author, a fact which she reported to HR.
HR, in turn, asked the company's security department to conduct an investigation into the allegations. That investigation included the retention of an outside handwriting analyst, who determined that it was highly probable that Bennett had written the poems. A search of Bennett's office, to which he consented, revealed copies of other poems that he had written. Upon being advised of the expert's conclusion, the general counsel scheduled a meeting with Bennett for the next day. He did not include the deputy general counsel in the loop of what was happening. Bennett denied authoring the poems Henchey received, and claimed that the poems found in his office were written for his wife. When asked to spell meager, however, Bennett responded "m-e-a-g-r-e." The general counsel concluded that Bennett had written the poems received by Henchey and terminated him. Bennett then sued for age discrimination, among other claims.
The appellate court upheld the trial court's dismissal of the case. On the age claim, the court was persuaded by the company's prompt and extensive investigation into Henchey's harassment complaint. Specifically, the court found that Saint-Gobain had presented a legitimate non-discriminatory reason for the termination -- a belief that Bennett had authored the harassing poems, sent them to Henchey, and lied about them when confronted -- and that Bennett had not offered any evidence of pretext. In the court's words, "In the absence of some other proof that the decisionmaker harbored a discriminatory animus, it is not enough that his perception may have been incorrect. Rather, the plaintiff must show that the decisionmaker did not believe in the accuracy of the reason given." Thus, it was irrelevant whether Bennett actually composed or sent the poems, but only mattered whether the general counsel honestly believed that he did. That honest belief was based on the opinion of the handwriting consultant and the decidedly British spellings used in the poems.
There are valuable lessons to be learned from how Saint-Gobain handled Henchey's harassment complaint.

1. It responded promptly. It did not wait to address Henchey's feelings of discomfort. It acted quickly and decisively to investigate the complaint and make a decision as to what had happened and what corrective action to take.
2. It responded throughly. Harassment investigations almost always turn on credibility. Unless the harasser admits the misconduct (and how many times does that happen?), the company is going to have to make a judgment call based on the credibility of the complaining employee, the accused harasser, and any witnesses. Instead of relying solely on credibility, though, Saint-Gobain gathered some objective evidence to bolster its conclusion (the handwriting expert and the voluntary search of Bennett's office). The court still might have sided with Saint-Gobain in a typical "he said/she said" scenario, but was likely aided in its conclusion that the decisionmaker had an honest belief about the termination decision because of the reliance on the handwriting expert.
3. It responded appropriately. Once Saint-Gobain decided that Bennett had authored and sent the offending poems, and that he had lied about them, it took the most appropriate action it could -- it terminated his employment. It did not warn him and wait for the next complaint. It determined that a serious offense had occurred, which warranted a serious response.
4. It shielded those with potential bias. The general counsel smartly chose to exclude the deputy general counsel, whom Bennett had previously accused of age discrimination, from the investigation. Had the deputy been included in the investigation or decision making process, Bennett would have been able to claim that bias irreparably tainted the investigation, an argument that may have gotten Bennett's claim to a jury.

Many may think that the hiring of an outside expert to analyze Bennett's handwriting is overkill in an internal investigation. This case shows that internal investigations often become the central focus of subsequent litigation, and the more rock solid an investigation is, the easier a later lawsuit will be to defend.

Supreme Court hears oral argument in Federal Express v. Holowecki

The United States Supreme Court today held oral argument in Federal Express v. Holowecki. It is the first of six employment cases the Supremes will decide this term. The issue in Holowecki is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit.

The plaintiff, Patricia Kennedy, submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination at that point. The EEOC neither assigned a charge number to the submission, nor did it inform Fed Ex that it had received the Intake Questionnaire. Five months later, Kennedy filed a class-action ADEA against Fed Ex, and waited another month before finally filing a formal Charge of Discrimination with the EEOC.

An individual claiming age discrimination may not bring a civil action against an employer without first filing a charge of discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction -- it's 300 days in Ohio) of when the alleged discrimination occurs. The employee must wait sixty days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims. The district court granted Fed Ex’s motion to dismiss, finding that the submission of the Intake Questionnaire did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that a charge is sufficient when the employee names the employer and generally describes the alleged discriminatory acts, and if a reasonable person would find that the employee intended to file a charge.

It will now be up to the Supreme Court to determine what constitutes a charge for purposes of opening the jurisdictional gate to the courts on federal age discrimination claims. Links to all of the lower courts' decisions, the various Supreme Court briefs, and the oral argument transcript are available here.

Fed Ex, has a compelling argument to make. Under the appellate court's ruling, the employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. Thus, Fed Ex can claim real prejudice by not having had the opportunity to resolve this case via the EEOC's informal conciliation process.

The following interplay between Chief Justice Roberts and Fed Ex's counsel illustrates this tension:

Chief Justice Roberts: I mean, once the lawyer's involved and they're in litigation and all that, they're not going to take conciliation efforts with the same light as before.... Did you undertake conciliation efforts after her formal, her filing of the Form 5 charge?

Connie Lensing: We were in a lawsuit, Your Honor, and so that sort of changes everything. We can't, we can't talk to her. We can't -- you know, the discovery process is what you then would use to investigate, rather than an informal investigation.

If I was to bet how this case will come out, however, I'm betting on the Roberts Court handing down its second pro-employee decision in as many terms. The EEOC's own internal policies and procedures seem to indicate that the Intake Questionnaire constitutes a "charge," even though it is not a formal charge document. Fed Ex should have received notice of the Intake Questionnaire, putting it on notice of the allegations against it and getting the ball rolling on the processing of the claim and the conciliation process. It is at least possible that the Supreme Court will invalidate the EEOC's own internal rules, but doubtful on what essentially amounts to a clerical issue.

OCRC backtracks on new maternity leave regulations

In a stunning turn of events that will surely please small business owners, the version of Ohio's new maternity leave regulations that the Ohio Civil Rights Commission will present to the Joint Committee on Agency Rule Review does not contain a blanket right to 12 weeks of pregnancy and childbirth leave. Instead, 12 weeks of leave is only to be mandated "when medically necessary."

Where an adverse employment action taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition is based upon an employment policy or practice under which less than twelve weeks of paid or unpaid pregnancy, childbirth or maternity leave is available when medically recommended, such policy shall be presumed to have a disparate impact on women and constitutes unlawful sex discrimination unless justified by business necessity. OAC 4112-5-05-(G)(4).

The "medically recommended" language did not appear in the originally published version of the approved regulations, and appears to have been slipped in by the Commission at the last minute.

Thus, the new regulation, which this morning's Plain Dealer reports would most likely be in effect by mid-December, will now require companies with four or more employees, including new and part-time employees, to offer three months' unpaid maternity leave, when recommended medically. In other words, businesses will only have to provide as much leave as certified by an employees' physician. The PD quotes one local attorney as being skeptical that doctors would honestly represent their patients' needs for leave, and may certify on request 12 weeks even though not necessarily medically necessary. I can only speak from experience that when my wife gave birth, her doctor would only certify her medically necessary leave for 8 weeks, and he told us it would have been 6 weeks if she hadn't had a C-section. My guess is that more often than not, doctors will stick to these generally accepted guidelines.

The Plain Dealer article quotes OCRC General Counsel Matthew Miko on the Commission's intent to always require a medical certification for maternity leave:

The Ohio commission says it is merely trying to clarify existing regulations that are confusing because they call for giving pregnant women "reasonable" time off, without spelling out what that is. The commission also said it always intended that women would have to get a doctor's recommendation for the leave. Language stating that was added to address business owners' worries that the plan was for a carte blanche benefit, said Matthew Miko, the commission's general counsel. The commission is not defining what form or document women will need from their doctors -- if any at all. Rather, companies will be expected to follow the same practices they use with other employees who are absent because of illness.

The regulations do not define "medically recommended," and omit any discussion of what rights a company has if it disagrees with a doctor's certification. These and many other issues will be hashed out in the courts over the next many years.

All companies should work with their employment counsel to update leave policies to include these new pregnancy leave rules, and should put in place appropriate medical leave forms for employees' doctors to use to certify the medical necessity for maternity leave.

Fly Eagles Fly -- Coach's situation illustrates associational diability claims under the ADA

Last week's win again the lowly Vikings aside, my beloved Philadelphia Eagles are a mess. Pre-season hopes have been dashed by Donovan McNabb's still-healing knee, wide receivers incapable of getting open, and, maybe, the personal turmoil of the head coach. Yesterday, a Montgomery County, Pennsylvania, judge sentenced each of Andy Reid's sons to 23 months in jail for different motor vehicle, drug, and gun violations. It was reported that one son was caught smuggling 89 pills into jail in his anus (yuck), and both were found in possession of a pharmacy's worth of legal and illegal drugs: OxyContin, morphine, Vicodin, Adderall, Prozac, Valium, cocaine, marijuana, testosterone, heroin, Trileptal and Percocet. During sentencing, the judge described the Reid house as a "drug emporium," characterized the brothers as "drug addicts," and opined that the Reid family "is a family in crisis." (See Judge: Jail for Reid sons; a family 'in crisis')
Let's suppose that the Eagles never rebound this season, finish well out of the playoff picture, and ownership decides to go in another direction next year and fires Andy Reid. Does Coach have a claim for discrimination? The answer is that he very well might. The Americans with Disabilities Act not only protects employees with disabilities, but also employees who are associated with individuals with disabilities: "'Discriminate' includes ... excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. 12112(b)(4). It is just as unlawful to fire an employee because of a family member's disability as it is to fire an employee because of the employee's own disability. There is no doubt that drug addiction is a protected disability. Thus, if let go at season's end, Coach Reid could have a colorable claim that he was terminated because of his association with his drug-addicted sons.
Interestingly, unlike a claim brought by a disabled person, an employer is not required to reasonably accommodate an employee based on an association with a disabled person. Thus, Coach Reid would not be able to claim that the Eagles discriminated against him by not granting him sufficient time off to care care for his sons. Under the FMLA, however, the Eagles might have an obligation to grant the Coach 12 weeks of leave because of his sons' addictions could qualify as a serious health condition.
This issue is one that rarely comes up, but when it does it presents a potential trap for the unaware employer. For more information on associational claims under the ADA, I recommend the EEOC's Questions and Answers About the Association Provision of the Americans with Disabilities Act.

What else I'm reading this week #3

Call Centers, No-Fault Attendance Policies and Making It Rain EEOC Charges..., from the HR Capitalist, discussing the unlikely effect of consistent treatment on a charge of discrimination.

Supreme Court to Rule on Issues Affecting Age Discrimination Claims, from the New York Employment Lawyer Blog, reporting on next week's oral argument on the issue of whether an EEOC intake questionnaire constitutes a "charge" of discrimination (more on this case next week).

Scary Halloween Story to Employers: Retaliation Case Award of $5.5M, from The ABA Journal, reporting on the multi-million dollar verdict in a harassment and retaliation case.

Trick Or Treat Training (Or How to Train for Terminations), from the Evil HR Lady, analogizing advice to children for safe trick-or-treating to advice to managers and supervisors for safe terminations.

Google Trial Shows Danger of "Ageist" Remarks, from the Manpower Employment Blawg, reporting on the dismissal of age discrimination case against Google being reversed by the appellate court and sent back for trial, in large part because of ageist comments.

The Interviewing and Hiring Process: Five Things every HR Generalist should know, from the Pennsylvania Employment Law Blog, giving some practical advice on interviewing and hiring.

Damned if you do, damned if you don't: "Fetal Injury at Work", from Overlawyered, discussing fetal injuries at work and protective employment policies. Compare that article, however, to Mandatory maternity leave does not qualify flight attendant for unemployment.

Overtime lawsuits for big auditing firm: Could it lead to problems for other firms?, from Sequence Inc. FRAUDfiles, picking up on the recent wave of wage and hour lawsuits, this time by auditors against public accounting firms.