Supreme Court to hear arguments today on issue of "me too" discrimination

Sprint/United Management v. Mendelsohn, which will be argued today at the Supreme Court, raises an important evidentiary issue that arises time and again in discrimination cases: "whether a district court must admit 'me, too' evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." Although this is an age discrimination case, the Court's holding will almost certainly affect race, gender, and other discrimination lawsuits. The issue is important for businesses, as permitting "me, too" evidence of discrimination will likely make discrimination cases more time-consuming, expensive, and difficult to defend, by forcing companies to defend against allegations brought by employees not parties to the lawsuit.

The facts of Mendelsohn are relatively simple. Ellen Mendelsohn, 51 years old, was one of 18 people in her group laid off by Sprint in the fall of 2002. Company-wide, Sprint laid off 15,000 employees. Sprint claimed that it included Mendelsohn in the RIF because of poor job performance. Mendelsohn claimed age bias in the decision.

At trial, she sought to call five other former Sprint employees, all over the age of 40, to testify that they too suffered age discrimination at Sprint. Sprint objected on the grounds that none of those five employees had worked for the same supervisor who had made the decision to lay off Mendelsohn. The district court agreed, and ruled that only workers laid off by the same supervisor could be called to testify. Ultimately, the jury ruled in Sprint's favor.

The 10th Circuit reversed, ruling that a district court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. It rejected Sprint's contention that the testimony was irrelevant because the witnesses were not terminated by the same supervisor as Mendelsohn. The court concluded that Mendelsohn was entitled to show that there was an unwritten "company-wide policy" of discrimination, under which multiple supervisors, and not just Mendelsohn's, were participating. Further, the court was unconcerned whether there was any evidence substantiating the existence of such a policy other than the plaintiff's subjective belief. Instead, the court found that the evidence is relevant and admissible because a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

There are any number of reasons why this decision should be reversed. In a discrimination case liability can only be shown by demonstrating discriminatory intent on the part of the decisionmaker (i.e, the person who made the relevant employment decision). Mendelsohn's five "me, too" witnesses, however, could offer nothing to show that Mendelsohn's supervisor acted with discriminatory intent. Additionally, no one had any proof that the various different decisionmakers were acting under some common scheme or plan, other than their own unsupported subjective beliefs. I would concede that the case would be different if there was some independent corroboration of a company-wide policy. Finally, I question the appellate court's reversal of a district court's discretionary evidentiary ruling.

This case will also be interesting from a Court-watching perspective, as it will be the third substantive employment decision out of the the Roberts Court. Last term, the Court was 1-1 in employments cases, with the Ledbetter pay discrimination case coming down for the employer, and the Burlington Northern retaliation decision for the employee. My prediction — a reversal with a holding that "me, too" evidence is not per se admissible in discrimination cases. Dicta will make it clear that such evidence is relevant when it is from the same decisionmaker, or from a different decisionmaker with independent evidence of a company-wide policy of discrimination.

A copy of the oral argument transcript is available from the Supreme Court here.

What else I'm reading this week #7

It's been a busy week in the blogosphere. Everyone is back at work, having digested their turkey and probably having started their holiday shopping. So, it is appropriate that we begin our weekly roundup with the following:

Beating the Crowds: Online Shopping at Work?, from HR World, on the monitoring of employees' use of work computers for holiday shopping.

Is the Family Leave Act Too Soft or Too Tough?, from the Wall Street Journal's Career Journal, debating whether the FMLA is too small of a benefit to employees or too big a burden to employers.

Exploring Tough Questions on E-Mail Confidentiality, from Ediscoveryinfo, noting the importance of reminding your employees that e-mails are not confidential. The advice that I always tell people in regards to whether to put something in an email -- if you do not want it read by your boss, shown to a jury, published on the front page of your local newspaper, or seen by your mother, it is probably best not to send it.

Business Week: "Unions: Less Impact and a Lower Profile", from The Union-Free Employer, commenting on the shrinking importance of labor unions in today's business climate.

Layoffs and Reductions in Force: Five Things every HR Generalist should know, from the Pennsylvania Employment Law Blog, giving a rundown of hot-button issues for mass layoffs and reductions in force.

Finally, we started with an issue of importance for the holiday season, and we'll finish with a couple of others:

Employer Liability at Office Holiday Parties - Beyond Sexual Harassment, Part I and Part II, from the Connecticut Employment Law Blog, summarizing the legal issues other than sexual harassment liability that can arise from over-lubricated employees at holiday parties.

For another reason why not to overindulge at the office holiday party:

Cheers!

Computer awareness should be important part of harassment policies and training

Danial Schwartz at the Connecticut Employment Law Blog posted yesterday on a case from the Second Circuit, which held that the mere presence of pornography in the workplace can be enough to create an objectively hostile work environment. Danial's point is similar to one that I wrote about couple of weeks ago, that businesses must take all harassment complaints seriously through prompt and thorough investigations. (See Remedial action must be meaningful to save employer from harassment liability).

Danial's post raises another important issue. Computers, email, and the Internet have become indispensable tools in most workplaces. They also make pornography readily available at the click of a mouse or the strike of a key. If courts are going to view the mere presence of pornography in the workplace sufficient to state a claim for sexual harassment, then employers must be vigilant about policing against it. This policing requires three important steps:

1. Implement a technology use policy (which includes computers, email, and the Internet), which patently forbids the downloading, display, or viewing of pornography, and makes it a terminable offense.
2. Incorporate training on the appropriate use of technology into your annual or every-other-year harassment training.
3. Consistently enforce the policy.

As I've repeatedly said, there is no such thing as a bulletproof employer. Taking these three simple, proactive steps, however, will go a long way towards limiting your risk and exposure should an employee file a harassment lawsuit based on workplace pornography.

Carnival of HR #21

The Carnival of HR (#21 for those keeping count) is available at Race in the Workplace. For those unfamiliar with the Carnival of HR, it is a traveling semimonthly compilation of the best HR-related posts in the blogosphere. Please jump on over to Race in the Workplace and support the efforts of the many bloggers who are linked.

ADA may require leaves of absence beyond FMLA mandates

Managing medical leaves of absence is the bane of nearly every HR department I come in contact with. In my experience, companies either react too harshly (immediate termination upon the expiration of 12 weeks of FMLA-eligible employees), or too passively (extending leaves of absence indefinitely). HR World has posted an interesting article on extending FMLA leaves of absence beyond 12 weeks, and attempts to strike a balance by asking how long is too long.

The article points out that a company may want to extend a leave beyond 12 weeks so as not to lose a valuable employee. The issue, however, runs much deeper, and under certain circumstances an extended unpaid leave of absence might be required as a reasonable accommodation under the ADA for employees with a qualifying disability. The ADA's regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an otherwise qualified individual with a disability. 29 C.F.R. § 1630.2(o). Thus, an employer may still have to provide unpaid leave as a reasonable accommodation: 1) after an employee exhausts the 12 weeks of FMLA leave, or 2) if an employer has fewer than 50 employees or if the employee has less than one year of service.

The EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (at Q. 21) gives the following helpful example:

An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

No leave must be extended indefinitely, and at some point a leave of absence is going become an undue hardship to the employer and can be ended. When that is, though, is not only going to vary from employer to employer, but also from employee to employee. Each specific leave of absence must be analyzed on its own merits, case by case. Six months is generally a good rule of thumb to follow, but there are many circumstances where a court could deem six months unreasonably short. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.

New I-9 form released - UPDATED

While not the most exciting news, all companies should update their hiring forms with the new I-9 available from the U.S. Citizenship & Immigration Service. Use of the new form will become mandatory on December 26. Because no one knows for certain when this will occur, it is best to put the new form in place now to avoid incurring any fines or penalties for non-compliance. The new form only applies to new hires. Employers do not have to re-verify the immigration status of employees who have already completed I-9 forms.

The changes to the I-9 are as follows:

• 5 documents have been removed from List A of the List of Acceptable Documents -- Certificate of U.S. Citizenship, Certificate of Naturalization, Alien Registration Receipt Card, Unexpired Reentry Permit, and Unexpired Refugee Travel Document.
• One document -- Unexpired Employment Authorization Document -- was added to List A.
• All Employment Authorization Documents with photographs have been consolidated as one item on List A.
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number, unless the employer participates in E-Verify.
• Employers may now sign and retain Forms I-9 electronically.

As always, employers do not file I-9 forms with the government, but must keep them either for three years after the date of hire or for one year after employment is terminated, whichever is later. All completed forms that fall within that time frame must be available for inspection by authorized U.S. government officials (such as Immigrations & Customs Enforcement or the Department of Labor).

Employers should use the publishing of this new I-9 form as a tickler to review and update document retention policies to ensure that the retention of I-9s is provided for, or to put a document retention policy in place if one does not exist.

Information about the new I-9 form, as well as a copy of the form for download, are available at www.uscis.gov/i-9.

The downside of family-friendly workplaces

Over the Thanksgiving holiday, Dilbert ran a small arc on family responsibility discrimination. The company decides to become "family friendly", and to compensate for the lost productivity, openly hostile to single people at the same time. So as not to run afoul of any potential copyright issues, you can go here to read the 11/22 strip and here to read the 11/23 strip.

While eating my leftovers, I got to thinking about what exactly it means to be "family friendly," and whether we are creating a new marginalized class of employees -- the young, the single, the childless -- all of whom are presumed to have the disposable time to work extra hours and pick of the slack for those who are the beneficiaries of family-friendly policies and the EEOC's new regulations against family responsibility discrimination. But, just because they are presumed to have disposable time, does that mean that they should necessarily bear the burden?

There are two ways to look at this issue. On the one hand, those without family responsibilities will in all likelihood some day have a family, and will need the same family-friendly policies about which they may now grumble and complain. On the other hand, managing a "family friendly" workplace is not just managing employees who have families and their attendant responsibilities, but also managing the employees without families, upon whom the added burden of picking up the slack for their co-workers often falls.

I have no answers as to the right approach. How to handle the problems posed by the Dilbert strips is largely an organizational issue. I am curious, though, to find out if my readers think that this is even a problem, and if so, how it should best be handled. Please post your thoughts below.