Some employees should just sail off into the sunset

Every once in a while, you come across a case that, when you read it, makes you wonder why the employee would ever even consider filing a lawsuit. Maurer v. Franklin County Treasurer (Franklin Cty. 7/10/08) is one such case. Chris Maurer was a tax collector in the Delinquent Tax Division of the Franklin County, Ohio, Treasurer's Office. His employer assigned him to work at its booth at the Reynoldsburg Tomato Festival. The County's booth was next to the booth for the Catalyst Church. Manning the Catalyst Church booth were two women in their early 20s, Faith and Jennifer Thoms. The opinion describes what happened:

While Faith was engaged in play with some children, [Maurer] came to the church booth and sat in one of the chairs. [Maurer] began playing with the bubble gun that was there for children's entertainment and, as a result, the liquid or bubbles from the gun spilled onto his hands and a map he had. [Maurer] went to Faith and wiped them on her thigh. After calling Faith's sister-in-law Jennifer to him, he wiped the map on Jennifer's thigh and on her skirt; she told him to stop. The two women attempted to resume their activities, but [Maurer] again called Jennifer over to him. He put his hand up the side of her above-the-knee skirt and then wiped his soapy hands down her thigh and her calf. Faith intervened, standing between them while she answered a phone call, and told him to stop. Meanwhile, the woman Jennifer had been speaking with walked away after witnessing [Maurer's] actions. During his time at their booth, [Maurer] repeatedly talked about wanting a massage and inquired who would give him one.

Ultimately, [Maurer] got up from the chair in the church's booth to put candy wrappers in the trash, and both women sat in the chairs so appellant could no longer occupy them. [Maurer] co-worker, Billie Grier, was not present during the incident, as [Maurer] had sent her out of the booth area for various reasons. When Grier returned, Jennifer and Faith told her to tell [Maurer] they were underage so he would leave them alone. Grier advised that supplying [Maurer] with such information probably would not help, as women in the office did not trust him with their teenage daughters.

Jennifer reported the incident to the Treasurer's Office, which conducted an investigation, and, after a hearing terminated Maurer's employment for "immoral conduct, discourteous treatment of the public, mistreatment of the public and sexual harassment."Not surprisingly, the court upheld the termination decision.

Too often, I write about cases in which employers did the wrong thing, either in making the decision to terminate an employee or in not properly investigating a harassment complaint. This case provides a good illustration of an employer that did everything right. It received a complaint of inappropriate conduct by an employee, promptly and thoroughly investigated, and terminated his employment.

This case also teaches a broader lesson. No termination is bulletproof. Even the most rock-solid termination can result in a lawsuit by a disgruntled employee. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons.

WIRTW #40

Actually, I'm not reading much this week, but I have pegged a few articles that might be of interest to everyone.

First, congratulations to Michael Fox. His Jottings By An Employer's Lawyer, the granddaddy of employment law blogs, celebrated its 6th anniversary this week. In honor of this milestone, he has graciously published a list of his colleagues around the country who have jumped on the employment law blogging bandwagon since he started.

The Delaware Employment Law Blog takes us to school with a great FMLA hypothetical spun out of Brad and Angelina's twins.

BLR's HR Daily Advisor asks whether employers have a duty to accommodate employees' alcoholism.

Finally, the Connecticut Employment Law Blog calls out the PC police on the term "intellectual disability," and asks what's wrong with good old fashioned "mental retardation." It's a valid question, but with the times, acceptable lingo changes. Just as it's no longer in vogue to refer to black people as "colored," our refined sensibilities have called into question some of the terminology we use to refer to the disabled.

Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim

Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:

Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.

The lessons to take away from this case are several:

1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Ohioans to Protect Jobs and Fair Benefits vows to fight against Healthy Families Act

Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses, organizations, and others  that oppose the Healthy Families Act, has formally launched its campaign to defeat the November ballot initiative. It calls the sick leave mandate a "job killer" for Ohio, and has just issued the following news release:

Opponents of the union-backed mandated sick leave proposal today announced formation of a campaign committee to defeat the proposal, labeling it “a job-killer” that threatens Ohio’s economy at a time when it is already reeling.

The committee, representing a broad coalition of individual employers, trade associations and businesses organizations, said it intends to educate voters about the devastating effects the proposed state mandate will have on individual employers, their workers and the Ohio economy.

“Few people in Ohio are against sick leave,” said John C. Mahaney, Jr., treasurer of Ohioans to Protect Jobs and Fair Benefits. “But Ohio’s struggling businesses – particularly our small businesses – can’t withstand provisions in this proposal that threaten pay, benefits and jobs.”

“To make things worse, the proposal also severely penalizes employers who already provide sick leave by imposing rules that will make it much more expensive to operate assembly lines and facilities like hospitals and nursing homes,“ Mahaney added.

Mahaney said the mandate will brand Ohio as a “job-killer” in the eyes of businesses nationwide at a time when the state is in desperate need of new jobs.

“This proposal will make Ohio the only state in the union with a mandated paid sick leave law,” he said. “It will significantly drive up the cost of doing business when we can least afford it, and it will kill our job-development efforts.”

The provision that worries employers who currently grant sick leave is one that allows employees to take sick leave without warning in one-hour increments or less. Mahaney said such a provision poses a serious threat to production stability at process-dependent employers like assembly line manufacturers and staffing-critical operations like hospitals, nursing homes and day-care facilities.

“Companies like Honda, Ford, General Motors, Chrysler, Whirlpool and others have long-standing agreements that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production,” he said. “This proposal directly interferes with long-established employer-employee relationships and the production stability achieved over many years of working together.”

Employers of every size worry that the cost to implement the mandate would require them to make up the difference by taking money from other benefits such as health care, curtailing raises or even cutting jobs, Mahaney said.

Ohioans to Protect Jobs and Fair Benefits promised a vigorous grassroots campaign in all 88 Ohio counties to defeat the proposal in November.

Ohio is suffering through its worst economic period in 20 years. This issue will make us one of the most business-unfriendly states in the country. With our nation's economy at a crossroads, Ohio's working people simply cannot afford our state to be branded a "job-killer."

If you want to get involved in this grassroots campaign, if you want to know how your business or organization can sign up as a supporter of Ohioans to Protect Jobs and Fair Benefits, or if you simply want more information on the dangers that the Healthy Families Act presents to Ohio, please contact me:

Jon Hyman - jth@kjk.com - 216-736-7226

Duty to reasonably accommodate obvious disabilities

Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

Dads get FMLA leave too

Even though new dads have the same FMLA rights as new moms, technically I'm not on FMLA leave. I'll be in and out of the office over the next several weeks as we get acclimated to our new family member. New parents don't qualify for intermittent leave:

(a) Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

Donovan Joseph Hyman was born at 12:42 yesterday, 7 pounds, 6 ounces, and 18.25 inches. And, not that I'm biased, but he's the best looking baby in the nursery.

WIRTW #39

Starting Monday, my posting may become more sporadic than I'd like, as my wife is going into the hospital to have our second child. I'll be taking care of my family responsibilities for a couple of weeks before I return to the office full time. I hope to do my best to keep posting, but it's all dependent on sleep patterns and how cooperative my normally very cooperative two-year-old wants to be. So bear with me, and I'll be back to regular postings later this month.

In the meantime, enjoy this week's best posts from other blogs.

The Delaware Employment Law Blog is taking everyone to HR Summer School by posting a series of "Back-to-Basics" articles on the 3 toughest employment laws - the ADA, the FMLA, and the FLSA. This week's lesson - What Does the ADA Require?

The Connecticut Employment Law Blog touches on a topic that I've covered before, that the presence of absence of fair treatment has a lot to do with whether an employee will sue you. For my thoughts on this issue, take a look at The Golden Rule of Employment Relations.

The Workplace Privacy Counsel lets us know about Sidell v. Structured Settlement Investments, recently filed in Connecticut, which will decide the limits on an employer's access, using its own computer equipment, to an employee's e-mail stored in an employee's personal e-mail account.

Case in point, the ABA Journal brings us the story of Philadelphia television news anchor Larry Mendte, fired for installing key stroke monitoring software on a station computer, which enabled him to access the private email account of his co-anchor, Alycia Lane. Philly.com has tons more on this bizarre story, including Lane's e-mailing of bikini photos of herself to NFL Network anchor Rich Eisen, who is married, her subsequent termination for allegedly assaulting a New York City cop, and the wrongful discharge lawsuit she has filed.

Electronic Discovery Navigator predicts that the added mobile technology made necessary by telecommuting will present an electronic discovery nightmare.

The Workplace Prof Blog lists 5 lifestyle choices that could cost an employee his or her job.