BREAKING NEWS: En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims

There are many types of relationships among employees in a workplace besides being co-workers. Many employees develop close friendships. Many businesses employee individuals from the same family – parents and their children, siblings, cousins, etc. Some employees work with their spouse. And some friendships develop into more, leading to dating, engagement, and even marriage.

Suppose an employee files a charge with the EEOC, and three weeks later, that employee’s fiancée is fired? Does the fiancée have a retaliation claim? Despite the fact that the fiancée engaged in no protected activity of his own, early last year in Thompson v. North American Stainless, the 6th Circuit permitted the employee to proceed with a retaliation claim by recognizing a claim for associational retaliation:

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. (emphasis added).

This morning, an en banc panel of the same court overturned its prior holding and expressly rejected this theory of associational retaliation.

Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado…. By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation….

We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.

Retaliation continues to be of the most dangerous employment-law risks to face employers. By limiting this potential liability, this decision is a huge win for Ohio businesses. Employers no longer have to worry about how close of a relationship is close enough for a potential retaliation claim. As far as retaliation is concerned, employers need only worry about employees who actually engage in their own protected activity. Isn’t that enough for employers to worry about? 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #82

I have a confession to make. I’ve never watched an episode of Jon & Kate Plus 8. I know that I am confessing to being a pop-culture Neanderthal. I guess I can live with that. This week, the Pennsylvania Labor Department launched an investigation into whether the show violates child labor laws. Michael Moore at the Pennsylvania Labor & Employment Blog and Jeffrey Hirsch at the Workplace Prof Blog have the details. For more information on child labor laws generally, check out Jennifer Hays’s thoughts at the Warren & Hays Blog.

I have another confession to make. I had been working on a piece that draws some lessons on talent management from the Cavs’s crushing loss in the Eastern Conference Finals. The HR Capitalist beat me to it.

During a White House press conference earlier this week, White House Press Secretary Robert Gibbs offered what can best be described as lukewarm support for the Employee Free Choice Act. LaborPains.org details his comments. Meanwhile, Michael Fox at Jottings by an Employer’s Lawyer reminds everyone that card check is only one of three key parts of the EFCA. In other labor law news, Michael Maslanka at Work Matters draws three important lessons from a recent viewing of Norma Rae.

BLR’s HR Daily Advisor ran a two part series this week on how to avoid lawsuits during a RIF: Part One and Part Two.

The Word on Employment Law with John Phillips, on playing hardball with former employees.

Patrick Smith at the Iowa Employment Law Blog talks about the legal risks in asking exempt employees to take time off for economic reasons. For my thoughts on this issue, see Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions.

Employment Law Bits has information on potential paid sick leave legislation.

Wage Law itemizes some of Supreme Court nominee Judge Sonia Sotomayor’s more important employment law opinions.

Ann Barnes at Compensation Force details a recent survey of severance pay and other separation policies.

Jay Shepherd at Gruntled Employees thinks Twitter will kill annual employee performance reviews.

The Laconic Law Blog reports on a decision out the D.C. Circuit discussing the distinctions between employees and independent contractors.

Becky Regan at Compensation Cafe lists 7 considerations for an effective sales plan.

Finally, I Hate People...But It's Nothing Personal reminds everyone that while it’s easy to hate lawyers, “savvy lawyers save your company time, aggravation and money.” Well said.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

3 lessons in handling workplace harassment

Gallagher v. C.H. Robinson Worldwide (6th Cir. 5/22/09) [PDF] offers an excellent example of how businesses get themselves into trouble by failing to actively and effectively police workplace offensive conduct.

Julie Gallagher began working at C.H. Robinson Worldwide, a Cleveland trucking company, in September 2002. She held an office job at CHR, working with two dozen other employees in a relatively small office. She quit CHR after only four months. In the interim, she claims that she was subjected to repeated sex-based harassment and offensive conduct, including:

• The prevalent use of foul language by mostly male coworkers who openly and loudly referred to female customers, truck drivers, coworkers and others as bitches, whores, sluts, dykes and cunts.
• The frequent display of pornographic websites and magazines.
• Co-workers who shared nude pictures of their girlfriends in different sexual poses.
• Male co-workers who daily traded sexual jokes and engaged in graphic discussions about their sexual liaisons, fantasies, and preferences.
• One co-worker angrily called her a “bitch” on several occasions.
• Male co-workers called her fat, a “heifer” with “milking udders,” and “moo”ed at her. 

Gallagher admitted that she did not avail herself of CHR’s formal harassment policy and complaint mechanism, but did sometimes complain to the branch manager, Greg Quast, to no avail.

The trial court granted CHR’s summary judgment motion and dismissed Gallagher’s case. The 6th Circuit, however, reversed and sent the case back for trial. Why? And what can employers learn from this case?

1. Offensive conduct can be “based on sex” whether or not it is directed at a woman. In this case, most of the complained of harassment was not directed at Gallagher, but was explicitly sexual and degrading of women in general. Such conduct is actionable whether or not the complaining employee is specifically targeted. The lesson: Employers should not ignore harassment complaints just because the complaining employee was only subjected to general workplace misconduct.

2. A jury could conclude that the harassment was severe and pervasive: “Considering the totality of the circumstances …, the conclusion is inescapable that a reasonable person could have found the Cleveland office—permeated with vulgar language, demeaning conversations and images, and palpable anti-female animus—objectively hostile.” The lesson: Businesses are not fraternity houses, and employers that allow frat-like antics to permeate the workplace will often find themselves on the losing end of a harassment lawsuit.

3. The branch manager should have taken greater steps to correct or remedy the harassment: “It is true that Gallagher did not report all of her concerns to Quast and did not necessarily characterize all of her complaints as sexual harassment complaints. Still, when the conduct Gallagher did report to Quast is considered alongside the pervasive conduct Quast himself witnessed, it can hardly be denied that there is a genuine fact issue as to what Quast, and therefore C.H. Robinson, knew or should have known.” The lesson: Once management knows or should know of inappropriate conduct (whether by a complaint or otherwise), it cannot borough its head in the sand, but must undertake a reasonable investigation and implement prompt remediation if warranted.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio Supreme Court confirms 180-day statute of limitations for most age discrimination claims

Ohio has what can best be described as a disjointed statute for age discrimination claims. Chapter 4112 of the Ohio Revised Code has four different provisions that cover age discrimination:

4112.14(B)	While a six-year statute of limitations applies to claim under this section, it provides limited remedies – lost wages and benefits, reinstatement, costs, and attorneys’ fees.
4112.02(N)	An age-discrimination claim under this section must be brought within 180 days of the alleged unlawful practice. Unlike 4112.14(B), it allows for the full list of available remedies, including compensatory and punitive damages.
4112.05	Allows for an individual to file an administrative charge with the OCRC, but acts as an absolute bar to filing a civil action in court for age discrimination.
4112.99	Provides an independent civil action to seek redress for any form of discrimination identified in Chapter 4112, including age discrimination.

 

In January 2008, the Hamilton County Court of Appeals held, in Meyer v. United Parcel Serv., Inc., that 4112.99 creates its own independent cause of action for age discrimination, which is subject to its own six-year statute of limitations. At the time, I argued that the Meyer case was an anomaly, and that the conventional 180-day statute of limitations for claims under 4112.02(B) was likely still good law. Yesterday, the Ohio Supreme Court agreed with my instincts and reversed the Meyer decision. In Meyer v. United Parcel Serv., Inc. (6/2/09) [PDF], the Ohio Supreme Court held that 4112.99 does not create its own cause of action, but instead any age claim brought under 4112.99 is merely subject to the specific provisions of 4112.02 and 4112.14.

Thus, a plaintiff only has 180 days to pursue an age claim and seek full remedies. Thereafter, any age claim brought up to six years hence would be restricted to 4112.14(B)’s limited damages. A plaintiff can still plead an age claim under 4112.99, but ultimately will have to elect either 4112.02 or 4112.14 as the statute under which the claim is being brought.

While Meyer may not break new ground, employers should nevertheless breathe a sigh of relief that the appellate court’s anomalous opinion was reversed. Employers will continue to enjoy Ohio’s very short window for individuals to seek a full slate of damages for age discrimination. 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Sexual orientation and gender identity discrimination

It strikes me as appalling that in the year 2009 there are still minority groups against whom it remains legal to discriminate. An employer can blatantly state that the reason for an employee’s termination is that employee’s sexual orientation, with little risk of legal repercussion. Recognizing this anachronism, some courts have permitted claims by creative attorneys under Title VII for sexual stereotyping. Such recognition, however, varies from judge to judge and court to court, with no uniformity or certainty.

If the Ohio legislature has its way, however, this type of discrimination will end. House Bill No. 176 seeks to add “sexual orientation, gender identity and expression” to the categories of protected classes against whom it is illegal to discriminate in employment decisions in Ohio. Under the statute as proposed, “Sexual orientation” would include “actual or perceived heterosexuality, homosexuality, or bisexuality,” and “gender identity and expression” would include the gender-related identity, appearance, or expression of an individual regardless of the individual’s assigned sex at birth.” The latter is much more controversial than the former, and will also likely be the subject of vigorous debate in Washington D.C. over a potential federal ban of the same types of discrimination.

Many companies have already made the personal decision to prohibit these types of discrimination. For those that have not, if sexual orientation and/or gender identity discrimination becomes illegal policies will have to be rewritten and employees and management will have to be retrained. Keep watching this space for further updates on this important issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Confidentiality of personnel records help protect employers from defamation liability

Most people are not confrontational by nature. Maybe that is why many employers are lax about accurately documenting employees’ performance problems. People like to give others the benefit of the doubt, not make waves, and not hurt feelings. It only becomes a problem when an employee becomes an ex-employee and files a lawsuit. At that point, it becomes difficult to explain why an employee with good performance reviews and scant written discipline was fired for performance problems.

One thing that businesses should not have to worry about from negative information in employees’ personnel files is defamation liability. Outlaw v. Werner (Cuyahoga County 5/21/09) [PDF] involved a patient who sued her doctor for defamation based on negative information written in her chart. In affirming the dismissal of her defamation claim, the court commented that defamation liability cannot be premised on information that is kept confidential. Most employers would agree that employees’ personnel files are confidential. Indeed, not even the employee has a right to see his or her own file. Nevertheless, it is not a bad idea to build a policy into your handbook making clear that personnel files are confidential.

For more on the importance of accurately documenting employees’ performance histories and problems, take a look at the following posts from the archives:

• A textbook example in handling a problem employee.
• ‘Tis the season… for employee theft.
• Failure to document performance problems dooms employer's defense.
• Penny-wise, pound-foolish employment practices.
• And finally, Document, document, document!

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #81

This week’s top labor and employment story is undoubtedly President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. For coverage of this historic event, read the thoughts of my fellow bloggers: Compensation Cafe; Connecticut Employment Law Blog; HR Lawyer’s Blog; Jottings By An Employer’s Lawyer; The Word on Employment Law with John Phillips; Warren & Hays; and World of Work.

I recently discovered an excellent blog on workplace conflict and corporate cultures -- I Hate People...But It's Nothing Personal. For a good idea of what this blog is all about, I recommend their post on management checking out employees’ Facebook pages.

Also on the topic of social networking, Anne Barnes’s Compensation Force discusses management efforts to regulate this exploding media.

This week also brings us a couple of interesting posts on sexual harassment. Mindy Chapman’s Case in Point talks about how to handle same-sex harassment complaints. On.point reports that a judge has reduced a sex harassment verdict from $100,000 to $26,500 to account for the plaintiff’s habit of exposing her own genital piercing to co-workers.

In age discrimination news, Jennifer Warren at the Warren & Hays Blog suggests that younger employees are being more greatly affected by the recent wave of layoffs. Patrick Smith at the Iowa Employment Law Blog reports on the rise of age claims and provides some practical tips on how to avoid them.

It looks like federally mandated paid sick leave is becoming more and more likely, at least according to Michael Haberman’s HR Observations and Michael Moore’s Pennsylvania Labor & Employment Blog.

Nick Fishman at the Employeescreen IQ Blog discusses background screening in a down economy.

Your HR Guy talks about why exit interviews don’t work.

World of Work reports on a Montana Supreme Court decision which held that exotic dancers are employees and not contractors.

Smooth Transitions shares some thoughts on how to prosecute a trade secret claim against an ex-employee.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.