Anti-bullying policies are unnecessary

April's decision by the Indiana Supreme Court that upheld a $250,000 verdict in a so-called "workplace bullying" case is causing some employment lawyers to call for businesses to adopt anti-bullying policies. Please do not include me in that group.

From the Wall Street Journal's CareerJournal column:

Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say. ...

The Indiana decision came amid growing concern about workplace bullying. Garry Mathiason, a senior partner at Littler Mendelson, a leading employment-law firm, says more corporate clients are raising the issue, motivated by legal questions, as well as concerns about the impact on productivity. Littler Mendelson featured bullying among its "breaking trends" in labor law at a conference for U.S. employers this year.

Angela Cornell, an associate professor at Cornell Law School who specializes in employment law, says workplace bullying is common enough that employers should "nip it in the bud before it becomes a problem."

Graniterock, a Watsonville, Calif., construction-materials distributor, is trying to do just that. In June, Graniterock added nondiscriminatory bullying to its list of prohibited conduct in the workplace, which already included harassment based on gender, ethnicity and other protected statuses. ...

Some business groups and lawmakers say workplace bullying is too difficult to define, and a poorly worded law would expose businesses to unnecessary lawsuits.

Mr. Woolpert says Graniterock executives reworked their antibullying policy several times to clarify its message. The company now forbids "unnecessary and rude behavior intended to be offensive and cause emotional distress, including 'workplace bullying.' "

Let's take a step back and focus for a second on the most important sentence from that article: "Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal." In fact, it's only illegal if its because of some protected class, such as sex, race, religion, national origin, age, or disability. All companies should have an anti-harassment policy that covers these types of illegal harassment. Why do companies need a policy that regulates conduct that is not illegal? Do we really need a policy that tells employees we want them to be nice? If such a policy existed, would it really have any effect whatsoever on the goons in the workplace. My whole problem with the anti-bullying movement is that I don't know how to train people to be nice.

I am against anything that gives this movement any credibility whatsoever. Implementing anti-bullying policies does just that. Bullying should be addressed just like any other performance problem, in a performance review. Otherwise, I stand by my earlier comments on this issue - the market corrects itself. Companies that foster bullies will have a revolving-door workforce, which will ultimately hurt productivity and the bottom line. So there is no confusion, I am not in favor of bullying. However, I'm also not in favor of legislation or policies that attempt to address it as a workplace evil.

Termination versus reasonable accommodation under the ADA

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08) asks the question - if a diabetic employee needs to take a break on the job, but is perceived to be sleeping, can the employer lawfully terminate that employee.

David McNary, suffers from Graves disease (an autoimmune disorder with  symptoms that include fatigue) and diabetes. He worked for Schreiber Foods for six years as a sanitation employees on its dairy equipment. Despite his medical conditions, he was never under any work restrictions. However, McNary had many conversations with his co-workers and supervisors about his need for breaks. On occasion, when he felt he could not perform certain tasks due to dizziness and other symptoms, his co-workers stepped in to help him.

On September 22, 2005, while cleaning some trash compactors, McNary became dizzy, sick to his stomach, and light-headed. He left the compactors and sat down, put his feet up on a table, and closed his eyes. According to McNary, he simply took a break but was not sleeping. Two supervisors found him sitting at a table with his head back, his mouth open, and his eyes shut, and he did not appear to have heard an intercom that sounded. McNary denied that he was sleeping, and explained his medical conditions. The Company subsequently terminated him for sleeping on the job.

The Court found that the Company had a legitimate non-discriminatory reason for terminating McNary and was unsympathetic to his claim of pretext:

Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

This case, however, should be not have been litigated over the propriety of the termination decision, but instead whether the Company had an obligation to reasonably accommodate McNary's conditions. Remember, the ADA does not only prohibit companies from discriminating against individuals with disabilities, but also requires that companies make reasonable accommodation to enable qualified individuals with disabilities to perform the essential functions of the job. By focusing the termination decision, McNary picked a much more difficult battle to win. Had he focused on the accommodation issue, the company would have had to argue that an unscheduled 15 minute break imposed an undue hardship. That point would have been difficult for the company to win in light of McNary's co-workers' past practice of stepping in to help him when he needed a break.

The takeaway for employers from this case is that just because you can terminate an employee does not necessarily mean that you should. This case could have come out differently if the employee had focused on the lack of an accommodation instead of on the decision to terminate. Any time an employer is dealing with a disabled employee, it is best for the employer to tread very lightly. As this case illustrates, the ADA often raises highly nuanced legal issues, and it may be best to get an opinion from counsel before making the decision.

Indiana pushing for passage of Healthy Families Act to help its own economy

If need any more reasons to work as hard as possible to help defeat the Ohio Healthy Families Act, check out the following editorial from the Seymour, Indiana Tribune:

OUR VIEW: Ohio could boost Hoosier economy

We think Hoosiers should encourage Ohio residents to support an effort that would require Ohio companies with at least 25 employees to offer at least seven sick days a year. Such a program — in Ohio — would be great news for Indiana’s economy.

Service Employees International Union District 1199 is pushing an effort to get that plan on the ballot in November 2008 to help drive Democratic voter turnout, The Associated Press reports.

It would be yet another reason for businesses not to choose Ohio, but that isn’t deterring the union. We say go, brothers, get it on the ballot and get it enacted into law.

Ohio already has high taxes, a higher minimum wage and a smoking ban. Why wouldn’t the union look for one more way to keep jobs from being created there? ...

“Workers should not have to choose between a paycheck and recovery time when they get sick,” the union said in a statement.

Measures like this one will ensure the paycheck won’t even be an option for even more Ohioans and perhaps ensure that more companies like Honda and Nestle choose Indiana over Ohio as homes for their plants, much as they did with announcements last year. Again, that’d be good news for the Hoosier economy.

Let’s hope the idea doesn’t cross the state line.

I've also heard that Indiana has billboards just across the state line from Ohio that read: "Come on IN for lower taxes, business and housing costs".

Our Midwestern neighbors are salivating at the opportunity to steal our businesses and jobs if the Healthy Families Act passes in November. Do not give them the opportunity.

WIRTW #42

On August 11, I will be hosting Blawg Review. For those who are unfamiliar with it, Blawg Review is a weekly review of the best of the blawgosphere, with its hosts rotating with each issue. Because of my Blawg Review responsibilities, WIRTW will be on hiatus next week, to return on August 15. Starting Monday (8/4), however, I will begin accepting submissions for the August 11 issue of Blawg Review. If you would like one of your posts considered, please email it to me with "Blawg Review" in the subject line.

On to this week's best labor and employment law posts:

Michael Moore at the Pennsylvania Labor & Employment Blog asks a question that is near and dear to my heart - is the legal system to blame for humorless work environments?

From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed.

I don't think it is necessary to scrub all humor from workplace. Indeed, such a measure could do more harm than good in terms of employee morale. Michael, however, offers several good tips to assist in avoiding liability for humor that does make its way into work.

The aptly named Labor and Employment Law Blog gives us 5 reasons why companies prefer to drug test job applicants as opposed to employees.

Meanwhile, the (not so) Evil HR Lady gives some insight on drug testing from an HR perspective.

The Delaware Employment Law Blog summarizes Senator Obama's promises to working women if he becomes President.

George's Employment Blawg tells everyone how to bulletproof employee investigations.

Finally, John Phillips' Word on Employment Law gives his tip of the week on the importance of written job descriptions.

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]