Harassment by radio station

Reeves v. C.H. Robinson Worldwide, decided yesterday by the 11th Circuit, asked the following question:

Whether daily exposure to language and radio programming that are particularly offensive to women but not targeted at the plaintiff are sufficient to satisfy the "based on" and "severe or pervasive" elements of a hostile work environment claim.

The plaintiff was the only woman who worked in her area. On a daily basis, her male co-workers used a barrage of the foulest and most sexist language one could conjure. They also listened to a morning radio show

that was played every morning on the stereo in the office. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a "sexual tyrannosaurus rex." When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

Despite both men and women being equally exposed to the same language, the court found that the language and the radio program were more degrading to women than to men. Thus, the environment was hostile to Reeves "based on" her sex. The court reversed summary judgment granted for the employer and remanded the case for trial.

The knee jerk reaction to this opinion would be a blanket ban on the playing of any radios in the workplace lest a female employee be offended by something she hears. From someone who can't do a lick of work without music playing in the background, let me assure you that such a reaction would be going overboard. The employer in this case failed not because it allowed radios to play in the workplace, but because it failed to police what was on those radios. Active policing of what employees listen to on the job is not necessary. Rather, companies should police these matters as they would any other alleged offensive conduct in the workplace -- a full and complete investigation after an employee complains or after the employer otherwise becomes aware that something offensive or inappropriate is taking place.

I'll be back tomorrow on whether language that is equally broadcast to men and women in the workplace should provide a basis for sexual harassment liability. [Hat tip: Workplace Prof Blog]

What are an employer's responsibilities to an employee taking FMLA intermittent leave?

Intermittent leave continues to be the thorn in employers' sides in administering the FMLA. One key burden that intermittent leave puts on employers is covering an employee's work who is performing at less than a full schedule.

Lewis v. School Dist. #70, recently decided by the 7th Circuit, suggests it would be unlawful under the FMLA for an employer to consider an employee's use of intermittent leave when evaluating the employee's performance. Lewis took intermittent leave to care for her housebound chronically ill mother. The School District fired her during her period of intermittent leave because she had not completed all of her assigned responsibilities. The court believed that a jury could conclude that the District terminated her in retaliation for taking intermittent leave under the FMLA:

The most prominent direct evidence proffered by Ms. Lewis is Dr. Hawkins' letter informing her of the District's decision to replace her as bookkeeper. The letter offered only one justification for the District’s action: "It was determined that you miss too much work to meet the essential functions of your present assignment." ...

The actions of the school board and the superintendent during Ms. Lewis' period of FMLA leave also raise serious questions about their reason for discharging her. There is evidence that, although the District was aware that certain bookkeeper functions were not being completed adequately while Ms. Lewis was taking intermittent FMLA leave, it made no effort to take adequate steps to assuage the impact of her intermittent leave on the District's operations. A reasonable jury could conclude that the District, instead of taking such steps, expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis. Arguably, when her periods of intermittent leave prevented her from timely completing all of the duties she had performed as a full time bookkeeper, she was removed from her position. Viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. ...

It could have shifted some of the bookkeeper's job duties to other employees during the time that Ms. Lewis was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It also could have transferred Ms. Lewis to another position (such as a teacher's assistant position) temporarily if she was unable to fulfill the essential functions of her job while taking intermittent FMLA leave. ... The District declined to exercise any of these options. In short, we believe that a jury would be entitled to conclude that the school board and the superintendent held Ms. Lewis to the unrealistic expectation that she should accomplish satisfactorily all of the duties of the bookkeeper position during her period of FMLA-protected intermittent leave.

This opinion goes beyond what the FMLA actually requires to accommodate an employee who is taking intermittent leave. Section 825.302 of the FMLA's regulations clarifies that despite an employee's right to take intermittent leave, such leave should not "unduly disrupt the employer's operations." Moreover, Section 825.204 of those same regulations makes it clear that an employer does not have to consider alternate work arrangements to accommodate an employee taking intermittent leave. Instead, employers have the discretion to "require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position." The only right the employee has in this instance is to "be placed in the same or equivalent job as the job he/she left when the leave commenced" when the intermittent leave is over or has been exhausted.

The court suggests that the School District may be liable for FMLA retaliation because it failed to consider any alternate work arrangements. The regulations make clear, however, that such arrangements are at the employer's discretion and not an absolute right that an employee enjoys.

What else I'm reading this week #28

Allow me to start this week with some self-promotion. To the immediate right of this post is a sidebar entitled Subscribe. It uses technology called RSS (which is short for Really Simply Syndication). RSS will deliver daily updates of this blog directly to your PC, either in a feed reader (such as Google Reader, which I use and recommend), or to your email (no spam or unsolicted email, I promise). To fully understand RSS and how it will greatly simplify your web surfing and information gathering experience, please check out Dan Schwartz's excellent post on this topic at the Connecticut Employment Law Blog. If you want to receive daily updates on what is going on in the world of employment law in Ohio and elsewhere, please consider clicking the orange box to the right or entering your email.

Dan also earns the honor for the post of the week - Court Flushes Away Disability Claim; Finds that Toilet-Training Book for Kids Not Enough to Create Hostile Work Environment, which discusses a Connecticut case in which an employee with some unpleasant gastrointestinal issues claimed that he was harassed on account of his disability by his co-workers leaving a book called "The Book of Poop" on his desk.

The Wall Street Journal's Law Blog asks: are Blackberrys the next battleground in wage-and-hour litigation? Be very afraid that plaintiffs' law firms are posting on their websites, "Have you been assigned a BlackBerry or a phone? If so, give us a call." For more on this topic, take a look at this analysis by Jeffrey M. Schlossberg and Kimberly B. Malerba. I've also touched on this topic before, in Can't get away from the office.

Andrew Scott-Howman's most excellent Life at Work blog, which I've recently discovered, has a post on a topic that is near and dear to my heart, discrimination against bald people.

Kris Dunn, The HR Capitalist, writes on the HR nightmare presented by employees who carry weapons in their cars.

From the ABA Journal comes a story about Whirlpool's suspension of 39 employees for smoking. Whirlpool, which charges its smokers $500 more in health insurance premiums, claims that the employees lied on their insurance forms by claiming that they had stopped smoking.

Finally, Nolo's Employment Law Blog gives a good update on the current state of religion in the workplace.

Court vindicates employer who turned a blind eye to a request for a reasonable accommodation

Buboltz v. Residential Advantages, Inc., decided last week by the 8th Circuit, illustrates the important point that merely because an employee has a disability does not mean that an employer must make a reasonable accommodation. This case also highlights, however, the risks that employers assume when ignoring a potential request.

Buboltz is legally blind. Residential Advantage, Inc. ("RAI") provides residential services to disabled individuals who cannot live independently. It hired Buboltz as a direct service provider ("DSP"), meaning she was responsible for providing services to the residents. Part of a DSP's job is to provide transportation to the residents. As an accommodation for Buboltz's blindness, however, at the time of hire RAI exempted her from that job function. When her supervisor became concerned about some performance issues (such as dispensing a resident's medications 3 hours late, and touching a resident's crotch to determine if he had wet himself), she modified Buboltz's job duties further. Thus, Buboltz was no longer allowed to dispense meds or be alone with patients. It was explained to Buboltz that her job was being modified out of a concern that licensing agencies might take issue with her blindness. In response, Buboltz said, "I have, like, numerous devices that I can use."

Buboltz claimed that her statement was a request for a reasonable accommodation, which RAI failed to subsequently provide. The Court disagreed. It found that Buboltz's statement was not a request for an accommodation, but a statement that she did not need any accommodation. Because Buboltz's statement was not a request for a reasonable accommodation, RAI was not under any obligation to engage in any interactive discussion with her about whether an accommodation was possible.

This case is not as clear cut as the Court makes it out to be. RAI had already accommodated Buboltz when it hired her by waiving the driving requirement. An employer's duty to reasonable accommodate a disabled employee is a continuing one and is not exhausted by merely one effort. A good argument can be made that when RAI concluded Buboltz should not dispense medication or work alone with residents, it should have discussed possible accommodations that could have allowed her to maintain those job responsibilities. By failing to do so, RAI took a calculated risk that ended up paying off.

Despite RAI's success, the take-away for employers from this case is not to ignore employees' requests for reasonable accommodation. If an employee's statement can be construed as a request for help to perform a job because of a disability, the employer has an obligation to engage in the interactive process to determine if there is a reasonable accommodation that can be made. Employers who ignore this obligation do so at their peril.

Ledbetter Fair Pay Act dies in Senate

Paul Secunda at the Workplace Prof Blog and CNN each have the details.

White House comes out against Ledbetter Fair Pay Act

It's been nearly a year since the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., which held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter decision set of a reactionary wave in Congress. Less than 2 months after Ledbetter, the House passed the Lilly Ledbetter Fair Pay Act of 2007, which would amend Title VII, the ADEA, the ADA, and the Rehabilitation Act such that a discriminatory compensation decision occurs each time compensation is paid per that decision. In other words, each receipt of a paycheck would start a new statute of limitations running, regardless of when the actual discriminatory decision was made or implemented.

While the Senate mulls the Lilly Ledbetter Fair Pay Act, the White House has publicly come out against it. From CNN:

The White House said it supports anti-discrimination laws, but that statutes of limitations are crucial in fact-intensive cases. A prompt assertion of discrimination is critical for both employers and employees, the White House said.

"This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims."

I've been on record opposing the Ledbetter Fair Pay Act. It would create a floating statute of limitations for pay discrimination claims, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty. Businesses need to know that they will reach a point in time when decisions cannot be challenged in court. Moreover, the more time that elapses between a decision and a lawsuit, memories fade and evidence becomes stale, making it more difficult for a company to rebut the claim. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision?

School's ban of tag underscores why the workplace bullying movement might catch on

Today's example of society's downward spiral to wussification, which plays right into the hands of the anti-bullying movement, comes from the Washington Post, which reports that a Virginia elementary school has banned tag at recess:

Robyn Hooker, principal of Kent Gardens Elementary School, has told students they may no longer play tag during recess after determining that the game of chasing, dodging and yelling "You're it!" had gotten out of hand. Hooker explained to parents in a letter this month that tag had become a game "of intense aggression." ...

Many schools nationwide have whittled down playground activities in response to concerns about injuries, bullying or litigation. Dodge ball is a thing of the past in many places, and contact sports are often limited at recess. ...

Since the prohibition began early this month, physical education teachers have begun a "chasing, fleeing and dodging" unit in first through fifth grades. Students essentially play variations of tag, and the teachers remind them about safety rules and point out the athletic skills they can transfer to other sports, said Sue Straits, a PE teacher.

Other parents said that slips and falls are part of growing up and that restricting games is not the right solution. Chris Delta, a Kent Gardens mother, said she knows "life's not going to breeze" for her children. She wants them to learn how to cope with difficulty. Her own daughter has been injured on the playground, she said. Once she was pushed off a jungle gym and had the wind knocked out of her, and another time she got a goose egg when a student threw a rock in the air and it landed on her head. "I didn't expect because of these two instances that the equipment would be banned or all the rocks or pebbles or stones would be taken away," Delta said.

Michael Haaren, a father, said that if some children are being too aggressive, they should be disciplined. Limiting the activity is a "draconian" measure, he said. He is concerned that schools are on a bad trajectory. "Where are we headed here? The elimination of recess altogether? It has happened in other schools. Will we eliminate 'duck duck goose' because kids are being touched?" he asked.

Don't think for a second that today's kids who can't handle playground games aren't going to be tomorrow's employees who will run to court every time their boss is mean. [Hat tip: John Phillips' The Word on Employment Law]