The importance of following established criteria

In Dunlap v. Tennessee Valley Auth., decided last week by the 6th Circuit, illustrates the dangers employers face when deviating from established criteria in the hiring process.

David Dunlap, a 52-year-old African American, was one of 21 applicants for 10 positions with the TVA. Before it began interviewing, the selection committee decided that the interview would account for 70% of an applicant's final score and technical expertise would account for the other 30%. While the committed would score each candidates after his or her interview, the committee would also review the the scores from all of the prior interviewees and re-score them. This "score-balancing" caused the final scores to vary widely from the initial scores. For example, Dunlap's attendance record of only a few days off for family illness was scored a 3.7, while two white applicants with the same answer scored a 4.2 and 4.5. Dunlap's perfect safety record received a 4, while another white applicant with two prior accidents scored a 6.

After the interviews, the 21 applicants were ranked in order of most to least qualified. Dunlap ranked 14th. Of the 10 hirees, only one was black. Dunlap alleges that the combined weight of his more than 20 years of technical and supervisory experience made him a more qualified applicant than some of the other applicants who were hired, some of whom had only minimal supervisory experience and poorer safety records. Dunlap scored the same on the technical part of the application as five of the selected white candidates, but he scored much lower on the interview. He alleged that the interview process was biased to select less qualified candidates and hide racial preferences. The Court agreed.

The Court found that the TVA's hiring matrix was a pretext for racial discrimination:

First, the selection committee determined that the interview would account for seventy percent of an applicant’s final score, and technical expertise would account for thirty percent, therefore transferring the bulk of the final score from an objective measurement (merit and experience) towards a subjective measurement (communication skills). The TVA’s "Principles and Practices" on filling vacant positions, however, mandate that "merit and efficiency form the basis for selection of job candidates," stating that "education, training, experience, ability and previous work performance serve as a basis for appraisal of merit and efficiency."

Thus, because the hiring matrix for these positions differed from the employer's established policies, the Court found the use of the matrix was pretextual. The Court also found that the interviewers' manipulation of the scores to ensure that certain people would rank in the top 10 was also evidence of pretext.

TVA's failure to follow its own established policies and practices is what ultimately doomed it in this case. If it had hired the same 9 white candidates instead of Dunlap, but instead relied solely on objective technical criteria as its "Principles and Practices" required, and had not balanced scores after each interview, it would have been close to impossible for Dunlap to have proved discrimination. The objective criteria were supposed to hire the 10 best candidates, not the nine best white candidates and one token African American.

The use of objective criteria, whether in hiring, or for selecting employees to be included in a RIF, is a great way to insulate your organization from a claim of discrimination. Those criteria, however, must be safe from scrutiny. When a subjective component is introduced, such as interviewing or "score leveling", it looks more and more like something other than objective qualifications are the deciding factor. Courts and juries like to think that companies hire and retain the best, most qualified people. If a plaintiff can show that numbers that were supposed to be objective are anything but, those same judges and juries will look for an explanation as to why. Often times, the answer they will find is discrimination.

Dealing with Internet addiction under the ADA

Last week, I asked whether the ADA affored protection to Internet addicts. I concluded that the ADA would not protect an employee who spends all hours of the workday surfing the Web for non-work reasons:

Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Donna Seale at Human Rights in the Workplace, a blog on Canadian employment law issues, suggests that under Canadian discrimination laws, the result might be different:

While I agree with the premise that employers have a legitimate interest in ensuring employees remain productive and do not misuse company technology, the pendulum in Canada in relation to the accommodation of disability in the workplace has clearly swung in the direction of employees. As a result, I'm not so certain that Canadian employers who attempt to take a strictly black and white approach to the enforcement of technology use policies (for example) won't come into conflict with human rights legislation.

I agree that issues in employment relations are never black and white. Even something such as an "Internet addiction" falls into some shade of gray. I just think this issue leans much closer to either pole than the middle. If an employee is not doing his or her job, and is caught surfing the Net all hours of the day, the employer should have right to terminate that employee, whether for lack of productivity, theft, or violation of a technology use policy.

If the employee says in response to the termination, "But I am addicted to the Net," the employer has a choice. It can (1) carry through with its decision, (2) reconsider its decision and try to make a reasonable accommodation for the employee, or (3) hold the employee's job while the employee seeks help. The magnanimous employer may choose #2 or #3, but I don't think the ADA requires it.

The situation may be different if the employee requests an accommodation for the addiction before the termination decision, but in that case the employee still has to be able to perform the essential functions of the job with that accommodation. If the employee's job requires Internet and email access, it's hard to imagine an accommodation that would enable to employee to work.

What else I'm reading this week #23

Lots of really good practical advice this week:

Michael Moore of the Pennsylvania Employment Law Blog gives 5 things every HR employee should know about retaliation.

John Phillips, guest blogging at the Connecticut Employment Law Blog, tells us what to do with a problem employee who lacks any documentation to support the termination.

BLR's HR Daily Advisor provides 7 traps to avoid in managing employees with disabilities.

George's Employment Blawg talks about the use of surveys to measure employee satisfaction and other issues.

The HR Capitalist, Kris Dunn, blogs on how not to write vacation policies.

Finally, the Alaska Employment Law Blog talks about why it is not a good idea to conduct locker room video surveillance of your employee.

English-only rule at Philadelphia restaurant upheld

As a native of Philadelphia, nothing makes my mouth water more than a cheesesteak (please, please, don't call it a Philly cheesesteak, which is redundant, or a steak and cheese, which will just show your ignorance). You might be asking yourself, what do cheesesteaks have to do with employment law?

Geno's, one of the sacred temples of cheesesteaks at the corner of 9th and Passyunk in South Philly, had a small problem with the Philadelphia Commission on Human Relations about a sign hanging in its window that reads, "This is America. When ordering, please speak English." Yesterday, a split three-member panel of that Commission ruled that the sign did not convey a message that service would be refused to non-English speakers. Anti-immigration groups are heralding Geno's owner, Joey Vento, as a hero. Today's Philadelphia Inquirer reports that the one dissenting commission member relied on testimony from witnesses who "felt intimidated and unwelcomed by the sign's message. One witness, University of Pennsylvania sociology professor Camille Z. Charles, likened the 'speak English' signs to 'whites only' signs from the Jim Crow era."

While Professor Charles might be overly dramatic, her comments highlight the raw emotion that people feel over English-only rules. As the debate continues in Congress over the legality of English-only workplaces, and some state legislatures consider similar bills that would permit employers to require their employees to speak English, businesses should continue to tread carefully before implementing such a policy. English-only workplace policies should only extend as far as necessary to reach an articulated business reason (such as safety or work-related communication among employees), and it is a good idea to consult with employment counsel to evaluate whether the policy is not discriminatory as written or applied.

[Hat tip: Overlawyered]

Is Internet addiction a protected disability?

There is no doubt that addiction is a protected disability under the ADA and Ohio's parallel law. The Department of Labor provides the following helpful summary of the impact of the ADA on employees who have problems with drugs and alcohol:

• Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.
• The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements).
• Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.
• Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.
• Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.)
• Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation.
• A person who is an alcoholic may be an "individual with a disability" under the ADA.
• Employers may discipline, discharge or deny employment to alcoholics whose use of alcohol impairs job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
• Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
• Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to alcohol and drug use in the workplace.
• The ADA does not protect casual drug users; but individuals with a record of addiction, or who are erroneously perceived as being addicts, would be covered by the guidelines.

The bottom line is that the ADA does not protect the impaired, but does protect non-impaired addicts, those who are perceived as addicts, and those who have a record of past addiction. In other words, an employer can terminate an employee who is impaired on the job or tests positive for drugs or alcohol on the job, but cannot terminate someone who is in rehab, for example.

What about other addictions? From Engadget Mobile comes this story about email addiction:

Considering the plethora of facilities that have opened just in the past few years to deal solely with individuals that have become undoubtedly addicted to video games, the internet and all things Hello Kitty (we jest, we jest), we're not surprised one iota to hear that uncontrollably texting / e-mailing could soon become "classified as an official brain illness." According to a writeup in the latest American Journal of Psychiatry, internet addiction is a common ailment "that should be added to psychiatry's official guidebook of mental disorders." More specifically, Dr. Jerald Block, a psychiatrist at the Oregon Health and Science University in Portland, even goes so far as to argue that said phenomenon (neglecting basic drives to spend more time online) be "included in the [next edition of] Diagnostic and Statistical Manual of Mental Disorders, psychiatry's official dictionary of mental illnesses."

Here's a preview of what might be coming for employers:

• Employer to employee, "Our IT department tells us you've spent 20 hour a week for the past 3 months surfing the Internet on non-work related sites. We're going to have to let you go.
• Employee responds: "But I'm addicted to the Internet."
• Employer: "Sorry, your non-work use of the Internet is stealing."
• Employee's lawyer: "We're suing you for disability discrimination."

Likelihood of success aside, this scenario is not all that improbable to occur. Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Carnival of HR is available

Wally Bock's Three Star Leadership Blog has posted this fortnight's Carnival of Human Resources. To quote Wally:

Stroll down the midway and you will find posts full of wit and wisdom that will delight, amaze, and educate. But wait, there's more. You'll also discover new blogs you'll want to read.

Workers' comp retaliation case shows importance of careful documentation

If you don't want it read by your spouse, seen by your boss, considered by a jury, or splashed on the front page of the newspaper, do not write it down or send it in an email.

Cunningham v. Steubenville Orothopedics & Sports Medicine, Inc., decided this week by Ohio's 7th Appellate District, illustrates the pitfalls that await companies that terminate employees in the midst of a workers' comp leave. It also shows that managers and supervisors must be vigilant in what they put in writing.

Marianne Cunningham was an x-ray technician for Steubenville Orthopedics. She injured her back at work and took a six-week leave of absence after filing a workers' comp claim for her injury. After informing Steubenville Orthopedics that she would be able to return to work the following week, she was laid off. Among the evidence that the court relied upon in reversing the trial court's dismissal of the retaliation claim was certain notes kept by her boss, Dr. Amin, in his desk:

• Notes that specifically mentioned a back injury Cunningham had suffered at a prior job.
• Dr. Amin gave excessive absenteeism as the reason for Cunningham's termination. His notes, however, documented that Cunningham was only absent 6 times in the 30 months prior to her injury, while the employee who replace her during her workers' comp leave missed 5 to 10 days of work during a shorter prior of time and was not terminated.

I've often written about the importance of documentation in employment cases. The Cunningham case illustrates that what you don't document is often as important as what you do document. Steubenville Orthopedics's case was sunk because Dr. Amin did not carefully vet his thoughts before committing them to paper. His notes gave the court the evidence it needed to find that a question of fact existed on the issue of Dr. Amin's motivation for the termination. Dr. Amin will now have to come up with some non-retaliatory explanation for his notes that passes the red-face test in front of a jury, an unenviable position.