Genetic Information Nondiscrimination Act clears Congress

In news that surprises no one but is nonetheless significant, the House has passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1. It passed the Senate last week by a 95-0 margin. President Bush is expected to sign GINA into law shortly. Among other provisions related to health insurance coverage, the bill will make it illegal for employers to use genetic information in hiring, firing, or promotion decisions.

For information on GINA, take a look at today's AP wire story as reported by the New York Times. The full text of the bill, as passed by the House, is also available.

I'll have more on GINA's potential impact if and when President Bush signs it.

Further reflections on Reeves v. C.H. Robinson Worldwide

I've been thinking a lot about the Reeves case, because something about it just hasn't been sitting right with me. I think I've finally put my finger on it. When a female employee or women in general are not the target of the offensive conduct, finding that the harassment is "based on" sex because women are more likely to be offended by the conduct then men confuses the intent of the alleged harasser with whether the plaintiff welcomed the conduct.
To establish a prima facie case of sexual harassment, an employee must prove, among other factors, that the sexual harassment was unwelcome and that the harassment was based on sex. By injecting a gender's perceived sensitivities into the equation, the court makes the intent of the conduct irrelevant. In doing so, the Reeves court has essentially created a general code of workplace civility. As explained in Yukins v. First Student, Inc., another case in which a female employee claimed sexual harassment based on conduct that offended her but was not targeted at her:

More important still, the cat-rape anecdote and the "fat ass" comment are examples of comments that while they may, depending on their context, offend in respects relevant to Title VII, have only a tangential intersection with the plaintiff. When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker is believed ... to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the work-place or emailed to the plaintiff. ... The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. ...
The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.

Everyone celebrate RSS Awareness Day

Today is May 1, which only means one thing -- it's RSS Awareness Day. For those of you who already subscribe to my feed, feel free to ignore this news. For those who don't, and either found me via a search engine, or maybe you just have me bookmarked and simply visit the site everyday, please click over to rssday.org and read about how subscribing to a blog's feed will greatly simplify your life. Then, please consider subscribing to the Ohio Employer's Law Blog to receive automatic updates of all of your employment law news.

Is exposure to generalized offensive comments enought to create a hostile environment?

Yesterday, we examined Reeves v. C.H. Robinson Worldwide in discussing whether an employer has an obligation to ban the use of radios in the workplace to prevent harassment. Today, we'll look at the other interesting aspect of the case, whether conduct that is offensive to women, but not targeted at them, constitutes sexual harassment.

Reeves alleged that the following sexually offensive language permeated the work environment each and every day for nearly 3 years. Notably, Reeves did not allege that any of the offending conduct was directed at her specifically. Instead, it appears that she was subjected to the same crude language as her male co-workers.

For example, one of Reeves's co-workers frequently used sexually crude language that offended her, including:

• Often using the phrase "f**ing bitch" or "f***ing whore" after hanging up the phone.
• Once calling the only other female employee in the office a "bitch" after she had left the room, and he once remarked that she had "a big ass."
• Telling frequent sexual jokes, including one for which the punch-line was "f**k your sister and your mother is a whore."
• Once calling another female a "c**t."

A different co-worker also offended Reeves with the use of sexually crude language. Reeves overheard that employee talk about:

• "Getting off" in reference to masturbation.
• A song that referenced "women’s teeth on a man's d**k."
• An experience in a hotel with naked women.

The branch manager, who was Reeves’s direct supervisor, also made comments that offended Reeves.

• He once referred to a former female co-worker as a "lazy, good-for-nothing bitch."
• Another time he asked Reeves to "talk to that stupid bitch on line four," referring to a female customer.
• He once said, referring to the only female employee other than Reeves, "[s]he may be a bitch, but she can read."
• On another occasion he said of the same employee, "[s]he's got a big one," referring to her buttocks.

In hostile work environment cases, the conduct is actionable if it "because of" sex or "based on" sex. To satisfy the "based on" element, a plaintiff must essentially show "that similarly situated persons not of [her] sex were treated differently and better." According to the Court:

The specific question that faces us here is whether harassment in the form of offensive language can be "based on" the plaintiff's membership in a protected group even when the plaintiff was not the target of the language and other employees were equally exposed to the language.

The Court concluded that Reeves could pursue her sexual harassment claim because the alleged conduct was "based on" sex:

The language in the CHRW office included the "sex specific" words "bitch," "whore," and "c**t" that ... may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature.

Thus, the Court was not persuaded that Reeves's equal exposure to the offensive conduct mitigated against a finding of a hostile environment. It concluded that the conduct was "based on" sex because the sex specific words "may be more degrading to women than men."

This holding may take sexual harassment law in a new direction. Indeed, in the 6th Circuit (which includes Ohio), "based on sex" has an entirely different meaning. According to Williams v. GMC:

[H]arassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women satisfies the "based on sex" requirement. ... The conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive ... constitute a hostile environment in violation of Title VII. The myriad instances in which Williams was ostracized, when others were not, combined with the gender-specific epithets used, such as "slut" and "f***ing women," create an inference, sufficient to survive summary judgment, that her gender was the motivating impulse for her co-workers' behavior.

The key difference between Reeves and Williams is that in Williams, the plaintiff claimed that she was specifically ostracized on account of her gender, and used the use of gender-specific epithets in the workplace as evidence of the sex-based animus. In Reeves, there was no claim of ostracism, and the only evidence of unlawful conduct was the epithets to which all employees, male and female, were exposed.

Reeves also bases its decision on a degree of sexual relativism. In other words, even though the conduct was not directed at Reeves, or even women in general, it was nevertheless "based on" sex because women, as the gentler gender, would be more prone to be offended by such conduct. Such a rule will require employers to act as morality police to protect the fairer sex from any exposure to words that might offend their delicate nature. I have no doubt that the woman noted in the Reeves decision who was directly called a "c**t" has a viable sexual harassment claim. I have grave concerns, though, whether Ms. Reeves should enjoy the same right.

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.