The softer side of employment law

Ellis v. United Parcel Service, decided this week by the 7th Circuit, is legally interesting in its dealing with the issues of interracial dating, race discrimination, and the ultimate lawfulness of UPS's termination of a manager for violating its nonfraternization policy. What's more interesting to me, though, is the Court's cautionary words on the issue of whether a nonfraternization policy makes good business sense:

In closing, we emphasize that our decision today should not be construed as an endorsement of the UPS nonfraternization policy. When a company like UPS runs expensive ads that ask "What can Brown do for you?" it might be wise for it to ask if this policy is really worth all of the fuss this case has created. As we observed in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353 (7th Cir. 1995):

As the work force grows and people spend more of their time at work, the workplace inevitably becomes fertile ground for the dating and mating game. It is certainly not unusual, and it may even be desirable, for love to bloom in the workplace. Contiguity can lead to sexual interest, which can lead to soft music, candlelight dinners, serious romance, and marriage, or any stops along the way.

By all accounts, Ellis was a good employee. He started with UPS as a driver right out of high school in 1979 and worked his way up to a managerial position. After 21 years with the company he met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That's a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn't seem quite right about that.

When implementing employment policies, there are legal considerations and human considerations. I too often write about the perils employers face when ignoring the former. The Ellis case is a good reminder that employers face different dangers, such a poor retention and lackluster morale, when they ignore the latter.

Lawsuit illustrates potential problems with employee testing

Today's Jackson (Tennessee) Sun is reporting that Kilgore Flares Co., a Tennessee defense weaponry manufacturer, has been hit with a class action lawsuit related to its neurological testing of hirees:

The class action lawsuit, filed on behalf of Robinette Anderson, states that the company uses a nerve test to determine who it hires. The test is supposed to determine the risk of potential employees' developing carpal tunnel syndrome, according to the suit.

The suit states Anderson was denied a position at the Toone plant after being tested. The suit also states the findings from these tests are "based upon unreliable measures." ...

"The country's leading scientists have concluded the nerve conduction exam has an exceptionally small, and often times wrong, predictive value for determining carpal tunnel syndrome," Anderson's attorney Justin Gilbert said in a press release.

"More fundamentally, we believe this type of 'propensity testing' flings open the door to forced genetic exams for purposes of hiring discrimination," Gilbert said. "We want employers to make judgments based on workers' abilities, not on dubious genetic predictions."

Depending on the results of the nerve testing, job applicants are either rated as having no restrictions as to where they work or as it being inappropriate for them to work in "highly wrist-intensive" jobs, the suit states.

The lawsuit contends Kilgore violates the Americans with Disabilities Act because it requires a person who's hired to fall into the no restriction category, according to the lawsuit.

The ADA allows for medical testing of job applicants as long two conditions are met: 1) a conditional offer of employment has been made before the testing occurs; and 2) the employer requires the same testing for all individuals entering the same job category. There is no requirement that the medical exam be job related. Once an employee is hired, however, an employer may only require medical exams if doing so is job-related and consistent with business necessity.

By all accounts, then, Kilgore's testing appears to be on the level in how it's administered. The lawsuit, however, seems to delve deeper by claiming that even if the testing itself is legitimate, Kilgore used the results to discriminatorily screen out any hiree with a propensity for carpal tunnel syndrome. That use of employee testing may pose problematic for Kilgore, even if the testing itself is legal. The test does not seek to determine which hirees currently have carpal tunnel syndrome and therefore might be job restricted, but which have a propensity to develop it down the road. I also question Kilgore's reasonable accommodation obligations to those hirees with actual carpal tunnel syndrome. It will also be a problem for Kilgore if it proves true that the exam has a small and often times wrong predictive value.

The takeaway for employers from this story is two-fold:

• Employers should make sure that any tests and selection procedures are properly validated for the positions and purposes for which they are used, and can be reasonably relied upon for that purpose.
• Selection criteria should be job-related and consistent with business necessity. If a criteria singles out a specific group, employers should scrutinize the risk of using that criteria versus the benefit derived from it.

What else I'm reading this week #29

Just a quick heads-up for everyone that I will be taking next week off from regular blogging while I'm out of town in depositions. In my absence, and in anticipation of the blog's upcoming birthday, I plan on re-running some of the past year's best posts. New content will resume on May 12.

This week's review starts with a couple of wage and hour highlights. The aptly named Wage & Hour -- Developments & Highlights brings us the story of Fenway Park's food vendors, who have filed a class action for unpaid wages and overtime. Meanwhile, HR World reports that Quest Diagnostics has settled with the Department of Labor for $688,772 in overtime back wages regarding the misclassification of 238 employees as non-exempt.

Alaska Employment Law has an interesting bit about how one judge empirically determines a witness's credibility.

The Connecticut Employment Law Blog has more information on the Genetic Information Non-Discrimination Act.

Finally, BLR's HR Daily Advisor discusses religious accommodations for tattoos and piercings.

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.