Has the time come for a workplace porn audit?

Last week I wrote about the importance of monitoring workplace technology in the context of a Second Circuit case, which held that the mere presence of pornography in the workplace can be enough to create an objectively hostile work environment (Computer awareness should be important part of harassment policies and training). This lesson hits a little closer to home today, as the Cuyahoga County Court of Appeals has reversed a trial court's grant of summary judgment in a sexual harassment case. In Johnson v. Olmsted Township, the plaintiff, a female police department employee, claimed that a male co-worker had once shown her a pornographic magazine and had once comments about her putting her legs behind her head. Based on those two isolated incidents, the appellate court found that a jury question existed on the severity or pervasiveness of the alleged conduct:

A single act of sexual harassment may be sufficient to create a hostile work environment if it is such a nature and occurs in such circumstances that it may reasonably be said to characterize the atmosphere in which a plaintiff must work. David subjected Johnson to the pornographic magazine in the company of other male officers. The episode a few months later where Davis commented on his perception of Johnson's agility was also made in the presence of male coworkers. The presence of male coworkers makes Davis' act humiliating, which can be considered severe.

If an appellate court is going find two isolated incidents sufficient to hold a jury trial in a harassment claim, perhaps companies have to rethink internal initiatives to head off lawsuits involving porn in the workplace. The headline may be tongue-in-cheek, but the message is real - courts will be more prone to give employers a pass in cases where they acted proactively in trying to rid the workplace of porn than where they stuck their heads in the sand and failed to sanitize the environment.

What else I'm reading this week #8

The Evil HR Lady has had a busy week:

Internal Policy, on whether a company has an obligation to rehire a former employee.

Dress Codes, giving some advice on workplace dress codes and how to address violations.

Pregnancy, also from the Evil HR Lady, on when is the best time for a pregnant employee to disclose the fact of her pregnancy.

While we're on the topic of pregnancy/leaves of absence, take a look atTaking Time Off From Work Without Fearing a Pink Slip, from the Wall Street Journal's CareerJournal.com, on the general legal issues surrounding medical leaves.

New report claims workplace bills would kill jobs, from WorkplaceHorizons.com, on a report by Congressional Republicans detailing how the recent rash of Democratic employment legislation will end up costing people jobs.

Inclement Weather Policies: Don't Get Lost in the Storm, from the Pennsylvania Employment Law Blog, discussing inclement weather policies.

Age Discrimination Releases and Remedies from Suits in the Workplace, reporting on two recent federal court decision dealing with the enforceability of age discrimination releases under the Older Workers Benefit Protection Act.

Finally, How to Get Recruiters To Sign a Contract NOT To Poach Your Employees, from The HR Capitalist, on the wisdom of no-poaching agreements.

Don Imus case illustrates the difficulty of dealing with language in the workplace

There's been a lot of ink spilled this week in both the print media and the blogosphere about the return of Don Imus to the airwaves. (See Who’s the language police for Don Imus? and Imus Is Back, Chastened but Still Proudly Obnoxious). Recall that CBS Radio and MSNBC fired Imus in April after a firestorm erupted from his calling Rutgers women's basketball players "nappy-headed hos." In a post on The Word on Employment Law, John Phillips suggests most HR professionals and employment lawyers would agree with Imus's termination, and that often such comments by senior management and executives are overlooked because "money talks." That argument ignores CBS's hypocrisy in firing Imus over the type of statement that made him such a valuable commodity in the first place. Imus's popularity, and his ability to make millions of dollars for his employers, stems from his controversial nature and his propensity to make comments such as "nappy-headed hos." In fact, he has said much worse over the years, and, once he feels safe in his new job, will probably do so again. That is why he has a job in the first place.

It's difficult to draw any generalized employment law lessons from the Don Imus case because his case is so unique, just as it is difficult to draw any lessons on collective bargaining from the Writers Guild strike. Suffice it to say that language in contextual - it always has been and it always will be. In most contexts and most workplaces, "nappy-headed hos" should not be tolerated, and should result in an investigation, appropriate discipline, and some diversity and sensitivity training. These obligations exist whether an employee complains or not, as supervisors and managers have an affirmative duty to stamp out offensive conduct and the use of offensive language when they come across it or learn of it. The best lesson to draw is simply that companies act at their own peril by condoning or ignoring the use of offensive language in the workplace.

Binghamton University considers adding a law school

You may wonder why a lawyer in Cleveland, Ohio, would care if Binghamton University (nee, the State University of New York at Binghamton) is thinking about opening a law school. I happened to have spent my formative years studying (and other things) in the gray, snowy hills of the Southern Tier. Comments to this news on the Wall Street Journal's Law Blog are not very positive, and repeatedly question whether there is a need for another law school. Let me suggest that BU has an opportunity to think outside the box and try something different with legal education in this country. Whether it's less of a focus on the Socratic method and more on practical lawyering skills, problem solving, and case studies, integrating actual legal practice into the required curriculum through a clinical and internship program integrated with the community, or something else entirely, Binghamton can set itself apart by starting from scratch with a new kind of legal education that gives students an alternative. I'm proud to be a Binghamton alum, and I am proud that it is thinking about branching out into my chosen profession. I hope it continues to make me proud by creating a first rate legal institution. Qualifying for March Madness this year would be nice too.

EEOC issues guidance on testing and selection procedures

The EEOC yesterday published a fact sheet offering some guidance for employers on the use of employment tests and selection procedures, and how they are treated under the anti-discrimination laws. Some examples of such tests and selection procedures are cognitive tests, physical ability tests, sample job tasks, personality tests, medical exams, psychological tests, English proficiency tests, credit checks, and criminal background checks. The latter two are also covered by the Fair Credit Reporting Act, which requires specific written consent by the employee, along with other specific notice and disclosure requirements (check with your counsel). The EEOC recommends that Title VII, the ADA, and the ADEA be taken into consideration in the application of any of these tests or selection procedures. For example (and not to state the obvious), do not give whites one test and blacks another, or give an agility test only to employees over the age of 40 (I'm not making this up).

The area where the discrimination laws are usually implicated is when a neutrally applied test disparately impacts one group over another. For example, does a physical exam that is given to all job applicants disproportionately screen out female applicants? If it does, is it otherwise job-related and supported by business necessity? Typically, if a neutrally given test evaluates one's skills as a related to the particular job in question it will usually past muster.

The ADA has specific statutory provisions and regulations that apply to medical inquiries and testing:

• When hiring, an employer may not ask any questions about disabilities or require medical exams until after it makes a conditional job offer to the applicant.
• After making a job offer, but before the individual starts working, an employer may ask disability-related questions and require medical exams as long as it does so for all individuals entering the same job category.
• With respect to current employees, an employer may ask questions about disabilities or require medical exams only if doing so is job-related and consistent with business necessity. Examples of permissible inquiries of testing of current employees would be if the employer has a reasonable, objective belief that an employee cannot perform the job's essential functions or will pose a direct threat because of a medical condition, or if an employee requests a reasonable accommodation.
• Reasonable accommodations must be made in any employment testing or screening to enable a qualified individual with a disability to take the test, unless such accommodation poses an undue hardship.
• All employee medical information must be kept confidential, maintained securely and separately from personnel files, and only disclosed to supervisory personnel on a need to know basis.

The EEOC also gives some employer best practices for testing and selection. Many of these are common sense, but for the sake of completeness, I am going to list them all anyway:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer's purpose. While a test vendor's documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the EEOC's Uniform Guidelines on Employee Selection Procedures.
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

For more information, the EEOC's Fact Sheet on Employment Tests and Selection Procedures is available here.

BREAKING NEWS: State halts new maternity leave regulations

So I've been saying for the past few months that once the OCRC adopted its new maternity leave regulations, passage by the legislative Joint Committee on Agency Rule Review would be a mere formality. Boy do I have egg on my face.

In a 9-1 vote, the JCARR sent the new regulations back to the OCRC for a more complete fiscal analysis. The Committee was unhappy that the OCRC said there would be no fiscal impact on school districts or local governments from the rule change. Today's Plain Dealer quotes State Senator and JCARR member Tom Niehaus, who cited as an example a small township police department that would be forced to cover shifts for a pregnant employee and pay overtime costs. Sen. Niehaus also expressed concern as to whether the OCRC has the authority to enact these regulations, although the Committee as a whole sidestepped that issue. The OCRC must now wait at least 90 days before returning with an updated application for the rule change. One now has to question whether the JCARR will ever approve the new regulations.

The bottom line for employers is that for now the old rule remains, that women must given a "reasonable" amount of time off work for maternity leave. I caution, however, that courts that have looked at the current 4112-05-5(G) have interpreted 12 weeks as "reasonable" because it is what the FMLA provides.

How far to the right has the Supreme Court swung?

In reporting on yesterday's oral argument in Sprint/United Management v. Mendelsohn, the New York Times asks the question: "Has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" The answer will not be known until all of this term's employment cases have been decided, but yesterday's oral argument may give us a clue that employees could have a tough go under the Roberts Court.

Many of the Justices seemed very concerned that the admission of "me, too" evidence in discrimination cases would lead to mini-trials of each "me, too" witness. The Justices were also concerned that admission of "me, too" testimony would require correlative admission of "but not us" witnesses in rebuttal by the employer. Trials that could last a mere two days could "last a thousand years," in the words of Justice Breyer, who is not known for his conservative views. The Justices questioned whether it was just simpler and cleaner to exclude the evidence in all but the clearest of cases, such as when the same decisionmaker is involved. After reading the argument transcript, I stand by yesterday's prediction -- the Court will hold that the appellate court erred in reversing the trial court's discretionary exclusion of the "me, too" evidence, and rule that such evidence is neither per se admissible or inadmissible in discrimination cases, but is left to the sound discretion of the trial court under Evidence Rule 403. The Court may also set forth some guideposts for trial courts to follow in exercising its discretion, such as whether the same decisionmaker was involved in the decision to terminate the "me, too" witnesses, or whether there is objective, independent evidence of a policy or practice of discrimination.