What else I'm reading this week #26

As you're reading this, I'm hopefully sitting poolside with my family in Vero Beach, Florida. Until I'm back next week, probably more burned than tanned, but nevertheless rested, enjoy the latest and greatest from around the blogosphere.

John Phillips of The Word on Employment Law brings us an important tip on over-documentation. Artificially creating a paper trail to trap an employee could be just as dangerous to a company as failing to document legitimate performance problems.

Lou Michaels from Suits in the Workplace reports that the EEOC is telling people it will start treating "no rehire" clauses in settlement agreements as retaliatory. This treatment will put employers in the precarious position of accepting the former employee back or facing a claim that the failure to hire was the result of the prior discrimination charge. As Lou astutely points out: "The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this."

Mark Toth, at the Manpower Employment Blawg, provides some insight into a recent large settlement between the EEOC and Dillard's Department Store over the propriety of transferring an alleged sexual harasser to a different store in response to a complaint at the prior store.

BLR's HR Daily Advisor gives some tips on how to best handle the dirty job of terminating an employee.

Finally, Law.com has a bit on a topic I've covered a lot lately, bullying bosses.

Deconstructing race, ethnicity, and national origin

Even though this blog is called the Ohio Employer's Law Blog, I often write about issues that come up outside of Ohio because I think they will be of interest to Ohio businesses. Abdullahi v. Prada, decided recently by the 7th Circuit, is one such issue. It discusses the similarities and differences between race, nationality, and ethnicity, how they are often intertwined in employment discrimination issues, and the linguistic tightrope we often walk in trying to distinguish among them.

Race, nationality, and ethnicity are sometimes correlated, but they are not synonyms. A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits. The largest groups are whites, blacks, and East Asians. Iran is a country, not a race, and an "Iranian" is simply a native of Iran. Iranians and other Central Asians are generally regarded as "white," whatever their actual skin color; many Indians, for example, are dark. Some Central Asians are indistinguishable in appearance from Europeans, or from Americans whose ancestors came from Europe, while others (besides Indians), for example Saudi Arabians, would rarely be mistaken for Europeans. Some Iranians, especially if they speak English with an Iranian accent, might, though not dark-skinned, strike some Americans as sufficiently different looking and sounding from the average American of European ancestry to provoke the kind of hostility associated with racism. Yet hostility to an Iranian might instead be based on the fact that Iran is regarded as an enemy of the United States, though most immigrants to the United States from Iran are not friends of the current regime.

Because of the intrinsic similarities between these three concepts, the plaintiff was not precluded from suing her employer for "race" discrimination, even though in her administrative charge she had only checked the boxes for "national origin" and "religion".

[Hat tip: Workplace Prof Blog]

Butt painter settles wrongful discharge lawsuit

In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.

[Hat tip: Lowering the Bar]

Employment lessons from The Office

NBC's The Office should be required viewing for any HR professional or employment lawyer. In honor of its return tomorrow night, US News & World Report brings us 7 Career Lessons From The Office. I'll share with everyone #2 - "Boss" shouldn't be confused with "friend":

When Michael said he wants his employees to think of him as "a friend first and a boss second, and probably an entertainer third," these were not the musings of a great manager. It sounds nice but it doesn't work -- try firing a friend or telling your friends that you've slashed their employment benefits. Yes, Michael has had a few heart-to-hearts that may have temporarily helped his employees, but it's unlikely to have increased their performance or their loyalty to the company.

So there are no doubts, I bring you the original boss of The Office, David Brent, and his philosophy on management:

Indiana Supreme Court permits expert testimony on "workplace bullying"

In what could be considered the first major judicial opinion on workplace bullying, the Indiana Supreme Court, in Raess v. Doescher, permits an expert witness to opine on "workplace bullying."

Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries), sued Dr. Daniel Raess, a cardiovascular surgeon, for an alleged assault in the operating room. The testimony at trial was that Dr. Raess was angry at Doescher about reports to the hospital administration over the doctor's treatment of other perfusionists. Dr. Raess aggressively and rapidly came at Doescher "with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him." Doescher backed up against a wall to defend himself, believing that Dr. Raess "was going to smack the s**t out of" him. Dr. Raess then suddenly stopped, turned, and stormed out of room yelling to Doescher, "you're finished, you're history." For this conduct, a jury awarded Doescher $325,000.

Among the testimony that the jury heard what that of Doescher's expert witness, Dr. Gary Namie, one of the co-founders of the Workplace Bullying Institute. The Workplace Bullying Institute is the organization that is on the forefront of trying to get anti-bullying legislation passed. Dr. Namie testified as to the nature of Dr. Raess's behavior:

In my opinion it's an episode of workplace bullying.... I concluded that based on what I heard and what I read that [the defendant] is a workplace abuser, a person who subjected [the plaintiff] to an abusive work environment. It was a horrific day, it was [a] particularly aggregous [sic], outrageous ... episode.

The Indiana Supreme Court found no error in the trial court's ruling that allowed Dr. Namie's "expert" testimony. According to the court, the term "workplace bullying" can be used because the phrase is "like other general terms used to characterize a person's behavior...." It also found that the trial court did not err in refusing to instruct the jury that workplace bullying, in and of itself, is not illegal.

It should be frightening to any business owner that a court has legitimized Dr. Namie's theory of workplace bullying as some great societal wrong that needs to be fixed. My fear is that this opinion will embolden the workplace bullying movement, a movement that readers of this blog know I feel should die a quick death.

New Jersey to adopt paid sick leave - is Ohio next?

While the Ohio Healthy Families Act stalls in the legislature, and Sick Days Ohio, the group lobbying for this bill, gathers signatures to place in on November's ballot, New Jersey will join California and Washington to become the 3rd state (plus the District of Columbia and San Francisco) to require paid sick leave for employees. The New Jersey plan, however, differs from Ohio's Healthy Families Act in three key regards:

1. New Jersey's employees will partially fund their own paid leave through a payroll deduction. According to today's Philadelphia Inquirer, each worker will pay about $33 per year, while each is entitled to collect up to two-thirds of their salary, capped at $524 per week.
2. Employers will be able to require their employees to use accrued vacation days and other paid time off before using their allotment of statutory paid sick leave.
3. Businesses with fewer than 50 employees would not be required to keep jobs open to workers who take the leave.

These differences are a step in the right direction of protecting the interests of small business owners. A payroll deduction and benefit cap will alleviate some of the concerns over cost, although I doubt that $33 per year per employee will be enough to fully cover all employees. Requiring employees to use other paid leave before the statutory leave will prevent potential abuses by employees. Finally, not guaranteeing continued employment for employees of small businesses will allow those businesses to meet their staffing needs without fear of a retaliation lawsuit.

The OHFA has other deficiencies that still need to be addressed, particularly its anti-retaliation provision: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." "Negative factor" is much too forgiving of a standard, and likely will hamstring employers from taking action against any employee who is out for even a day with an illness.

The Ohio legislature should consider the OHFA, if only to keep it from appearing on the November ballot in its current form. Such debate should include consideration of these provisions from the New Jersey law, each of which addresses an important concern to Ohio's small business owners.

Court reminds us that harassment must be because of a protected class to be actionable

Williams v. Spitzer Auto World, Inc., decided this week by the Lorain County, Ohio, Court of Appeals, is a great illustration of the dangers the will befall corporate America if workplace bullying legislation becomes the law.

Michael Williams, an African-American, quit his job at Spitzer (it's been a busy couple of weeks for Spitzer) and alleged, among other things, racial discrimination, racial harassment, and constructive discharge. The jury found in favor of Spitzer on the harassment claim, but nevertheless awarded Williams damages on his constructive discharge claim. A constructive discharge is where "the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." The intolerable working conditions, however, must be tied to some unlawful conduct by the employer for an employee to claim a constructive discharge. Because Williams had not proved his harassment claim, the appellate court ruled that his constructive discharge claim must therefore also fail.

This case is a perfect illustration of what's wrong with the anti-bullying movement. If groups like the Workplace Bullying Institute get their way and generalized workplace bullying becomes illegal, every employee who quits a job because of an alleged abusive boss will have a colorable constructive discharge claim. The violation of the anti-bullying law would provide the unlawful conduct necessary to support the constructive discharge claim. It is for this very reason that anti-bullying legislation would spell the end of employment at-will, as every employee who resigns because they don't like their boss would be able to claim a constructive discharge.