Associational Retaliation Revisited

In Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, holding: "Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action." This week, another court, the U.S. District Court in New Mexico, took up the same issue and reached the contrary result.

Ramona Kay Bradford, a Wal-Mart employee, filed a charge of discrimination against Wal-Mart with the EEOC. Two months later, her daughter, Robin, applied for a position at the same Wal-Mart store. Although she received positive feedback from her first interview, Robin was not called back for a second interview. At least five individuals with less schedule availability and lower qualifications were hired. Two months after Robin was rejected, Ramona's son, John, suffered the same fate when he applied for a job at the same Wal-Mart store.

In EEOC v. Wal-Mart, the EEOC alleged that Wal-Mart violated Title VII when it failed to hire Robin and John Bradford in retaliation for their mother’s Title VII charge of discrimination. The court was asked to decide whether Robin and John Bradford could sue for retaliation even though they did not personally "engage in protected opposition to discrimination" or "assist or participate in any manner in an investigation, proceeding, or hearing under [Title VII]." The EEOC took the same position as the Court in Thompson v. North Am. Stainless -- that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against "someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights."

The Court, however, was not persuaded:

Despite the danger that employers might retaliate against an employee’s family member and undermine the overall purpose of the anti-retaliation provision, this Court must apply the plain statutory language unless it results in "an absurd outcome that contravenes the clearly expressed intent of the legislature." ... The clear wording of [Title VII's anti-retaliation] provision limits causes of action to persons who engage in opposition or who participate in some way, even if minimally, in the protected activity. ...  And, expanding the scope of persons by whom an action can be brought beyond the clear language of the statute is not within the purview of the courts, but is the responsibility of Congress.

In other words, if Congress intended Title VII's anti-retaliation provision to reach family members of those who engage in protected activity, Congress would have said so in the statute.

This case illustrates the split on this issue among the various federal courts, a split in which the 6th Circuit is in the minority. At some point, the U.S. Supreme Court will be asked to review this issue. Until then, be mindful that associational retaliation is illegal under federal law in Ohio, Michigan, Kentucky, and Tennessee, even if other courts correctly disagree.

All hail dads

Being a new dad myself, the following headline from the National Law Journal caught my eye: More Men Filing Workplace Lawsuits - Lawyers are calling this a byproduct of the father's rights movement.

According to the article, more men than ever before are filing employment claims. The EEOC saw a record number of sexual harassment complaints filed by men in 2007, and more men are filing FMLA claims based on family responsibilities.

As more and more men assert their right to strike a balance between their jobs and their families, what steps can companies take to avoid claims being brought by disgruntled men?

1. Incorporate harassment against men into general harassment policies and training.
2. Ensure that all leave policies are gender-neutral.
3. Discipline anyone who makes derogatory comments about an employee's paternity leave.
4. Foster a work environment in which no one, male or female, is discouraged or scared from taking time off.
5. Reward actual performance, and not merely hours spent working.

Adopting some these measures in your workplace can help avoid the following, which is believed to be the largest verdict ever entered in favor of a man in a caregiver discrimination lawsuit:

New Wage and Hour Regulations Proposed by Department of Labor

Very quietly and with zero fanfare, the Department of Labor has published proposed new regulation for the Fair Labor Standards Act. The DOL's stated intent to amend regulations that have "become out of date because of subsequent legislation or court decisions." The biggest changes deal with compensatory time, tip pooling, and overtime pay for fluctuating workweeks. There will be much more on these topics if these proposals are formally adopted into the FLSA's regulations.

[Hat tip: Connecticut Employment Law Blog]

Is the glass ceiling self-imposed?

One blogger has theorized that the glass ceiling and the disparity in pay between men and women is self-imposed by women who prioritize motherhood over their careers. Tracy Coenen, on her Fraud Flies Blog, writes that workplace discrimination against women is largely a myth:

The problem here is clear, and it’s not a case of discrimination. It’s that women make choices which put them behind on the career path. I don’t begrudge any woman her right or her choice to have children. However, if she’s going to leave the workforce or reduce her role at work after having children, she can’t expect to keep up with her peer group.

Many say the choices women must make are difficult, as most don’t have a husband who is willing to stay home and perform the traditional role that a “housewife” used to in order that his wife may focus completely on her career. I don’t doubt that’s the case, but women still must be accountable for their own choices in partners, careers, and family life.

These false cries of “discrimination” upset me because when there are legitimate cases of discrimination, I think they are likely to be viewed more skeptically. Let’s use the word discrimination only when it’s really appropriate.

And for women in corporate America, let’s just acknowledge that not being paid as much as men or not attaining as many high-level positions as many is really related to career and family choices. I think our market is efficient, and works well to award pay at a level that is earned by the employee, regardless of gender.

I have to admit, It's an interesting theory, albeit one without any hard data to back it up. I'd like to think that in 2008, we have gotten beyond stereotyping women, minorities, the disabled, etc., and that all employment decisions are based on ability. Of course, that perception would be hopelessly naive. There are still lots of examples of women being passed over because of the family choices they have made.

Employees, regardless of gender, have the right to have a career and a family and not be punished for it. The balance for employers is not to confuse ability with dedication to job over all else. It's when businesses begin to equate performance deficiencies with an employee's family life that the specter of family responsibility discrimination begins to raise its troublesome head.

Governor seeks compromise to keep Healthy Families Act off the November ballot

Governor Strickland has spoken out against the Ohio Healthy Families Act as bad for Ohio businesses, but he is not necessarily opposed to to idea of paid sick days as a concept. Thus, he has been working with both Sick Days Ohio, the group sponsoring the OHFA, and business groups such as Northeast Ohio's Council of Smaller Enterprises (COSE) to forge a compromised bill and keep the OHFA off the November ballot. Governor Strickland is pushing what he calls "principles of sick leave," which are less specific than the current proposal. Regardless of any changes, however, the Cleveland Plain Dealer reports that COSE and other business interests may nevertheless oppose any sort of paid sick leave:

COSE, which represents nearly 17,000 small businesses in Greater Cleveland, is particularly opposed to the coalition's provision that would allow workers to take sick time in small increments. It says such time-keeping would be an administrative nightmare and would potentially disrupt time-sensitive manufacturing.

But eliminating that provision would not lessen COSE's overall opposition to the proposal. ...

COSE is working with the Ohio Chamber of Commerce and other business groups to oppose the ballot issue. They have formed the Ohioans to Protect Jobs and Fair Benefits coalition.

Millard said the coalition wants to raise $10 million for its campaign. He said he would rather see the money invested in job expansion and to help attract businesses but said the coalition has little choice.

Any compromise would have to be reached in the next two weeks. The coalition behind the OHFA has until August 6 to submit 120,000 valid voter signatures to qualify the proposal for the November 4 ballot, and is expected to hit that mark.

Given the philosophical differences between business and labor on this issue, I would be very surprised if the Governor is able to forge a compromise.

WIRTW #41

Another week, another week of excellent employment law posts from around the country for everyone to peruse.

The Delaware Employment Law Blog takes us back to HR Summer School in its second class on the FMLA, this time covering the meaning of a serious health condition.

Ohio Practical Business Law gives us a primer on non-compete agreements under Ohio law.

The Connecticut Employment Law Blog, meanwhile, teaches us about the WARN Act and what companies must do in mass layoffs and plant closures so as not to run afoul of it.

The Pennsylvania Labor & Employment Blog talks about investigating employee misconduct through the surveillance of data.

Finally, Fair Labor Standards Act Law tells us how to properly structure unpaid internships so they don't violate the FLSA.

The federal minimum wage rises, but does anyone in Ohio care?

Today, the federal minimum wage increases to $6.55 an hour. This should be bigger news than it is, but in Ohio this increase will have almost no impact at all. Thanks to 2006's minimum wage ballot initiative, Ohio's minimum wage in already $7.00 an hour. So, file this information away as interesting trivia, and know that Ohio already outpaces the federal government by $.45 an hour.