No buts about it: Supreme Court rejects mixed motives for age discrimination cases

Employees have three traditional methods to prove intentional discrimination: (1) direct evidence (comments that evidence a discriminatory animus made by a decision-maker in close temporal proximity to the challenged employment decision); (2) indirect evidence (which uses the McDonnell Douglas burden-shifting formula); and (3) a mixed-motive (discrimination was a motivating or a substantial factor in the employer’s action, and the employer cannot show that it would have taken the same action regardless of that impermissible consideration).

This morning, in Gross v. FBL Financial Services, Inc. [PDF], the Supreme Court held that there is no such thing as a mixed-motive in age discrimination cases under the ADEA. To succeed on an disparate treatment claim under the ADEA, a plaintiff must now prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Because age discrimination plaintiffs must now prove “but for” causation, it is more important than ever for employers to meticulously document employees’ performance problems and other disciplinary action. A well-documented personnel file will make it that much more difficult for a plaintiff to prove that age was the sole reason motivating the termination or other action.

Proposed law would grant working moms breastfeeding rights

Last year, I wrote that even though Ohio has one of the country’s most liberal breastfeeding laws, it likely does not protect a mom’s workplace lactation rights. Moreover, few courts have protected breastfeeding and expressing breast milk under current workplace sex discrimination laws.

A potential new federal law could change all that. Identical bills have been introduced in the House and Senate that would require employers to accommodate working moms’ breastfeeding needs at work. The Breastfeeding Promotion Act [PDF] would make three significant changes to existing laws:

• Amend Title VII to include lactation (breastfeeding or the expression of milk) in the definition of sex discrimination.

• Amend the Fair Labor Standards Act to require that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth”, and make “reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion” for an employee to express breast milk.

• Amend the Internal Revenue Code to provide a tax credit for employers that provide an appropriate workplace environment for employed moms to breastfeed or express milk.

It’s difficult to say how much traction the BPA has, but this bill is definitely one that warrants watching.

[Hat tip: World of Work]

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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? “Salting” the wounds of labor organizing

“Salting” is a common organizing tactic used by labor unions. It refers to union organizers applying for jobs with non-union employers. The organizers then attempt to organize the employer’s workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

In Toering Electric Co. [PDF], the Bush-era NLRB attempting to limit the ability of unions to salt non-union workplaces. It ruled that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer in order to qualify as an "employee" under the meaning of the National Labor Relations Act, and thus be protected against hiring discrimination based on union affiliation or activity.

Although they face an uphill battle, Congressional Republican are attempting to put another nail in salting coffin. The Truth in Employment Act of 2009 would amend the National Labor Relations Act so that an employer would not be under any obligation to “employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” The Congressional findings contained in the bill make it clear that this intent of this measure is to end salting once and for all:

The tactic of using professional union organizers and agents to infiltrate a targeted employer’s workplace, a practice commonly referred to as ‘salting’, has evolved into an aggressive form of harassment not contemplated when the National Labor Relations Act was enacted and threatens the balance of rights which is fundamental to the system of collective bargaining of the United States. Increasingly, union organizers are seeking employment with nonunion employers not because of a desire to work for such employers but primarily to organize the employees of such employers or to inflict economic harm specifically designed to put nonunion competitors out of business, or to do both. While no employer may discriminate against employees based upon the views of employees concerning collective bargaining, an employer should have the right to expect job applicants to be primarily interested in utilizing the skills of the applicants to further the goals of the business of the employer.

Given the party affiliation of both houses of Congress and the White House, the Truth in Employment Act will likely go nowhere. It’s introduction, though, is a good reminder to non-union employers that salting remains a legitimate threat, especially in today’s pro-union environment.

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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.

Examining our prejudices

As my wife and I were loading our kids into the car for a trip to Lowe’s last Thursday night, we noticed someone we didn’t recognize talking to our neighbors across the street. As we were getting into our car, the man crossed the street and approached us. He was in his early twenties and casually, but neatly, dressed. He was carrying a packet of papers in his hand, and began rambling about running track, a trip to England, and selling magazine subscriptions. He handed me his packet of papers to look at, which ended up being a bunch of handwritten notes of magazine titles. When I told him that we already bought subscriptions from our nieces and nephews, he changed his story to something about soliciting used books for his mom. Needless to say, my spidey sense started tingling. I quickly finished gathering my family into the car, excused ourselves, and drove off. I also called the police. Apparently, I wasn’t the only person skeeved out by this guy, because the police already had a description and two squad cars on the way.

I’ve neglected one fact from this story. The particular person who made me nervous enough to call the police happened to be African American. Given his weird behavior, shifting purposes for going door-to-door, and lack of legitimate handouts, I’d like to think I would have reacted the same way no matter his race, especially in light of our neighborhood’s diversity. But, I am left wondering if his race added to my level of discomfort.

Most people do not set out to discriminate. In my career, I’ve come across very few employers that made a conscious decision to fire someone because of their race. Yet, no matter how enlightened and progressive we like to think that we are, we all harbor life experiences and prejudices that shape our behavior. Those prejudices don’t make us bigoted or racist; they just make us human.

Businesses get themselves in trouble when they believe they aren’t capable of discrimination. The key to avoiding potential liability is to recognize that we are all capable of discriminating. That recognition allows us to examine the prejudices that could lead to disparate treatment and hopefully avoid it. Something to think about the next time you hire or fire someone.

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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 #83

Every now and then a story slips through the cracks. Such is the case with Lima v. State, decided this week by the Ohio Supreme Court, in which the Court ruled that cities cannot enforce residency requirements as a condition of employment. The Cleveland Law Library Weblog has more information.

If the following headline doesn’t make you throw-up your breakfast, nothing will: Former Employee Wins $4.1 Billion. That is not a typo. The award really was $4.1 Billion. World of Work has the gory details of what can go wrong when you terminate a really high earner.

Two states have enacted legislation permitting parents unpaid leave to attend their children’s school activities. Colorado (via the Colorado Employment Law Blog) and Nevada (via the Workplace Prof Blog).

Meanwhile, Compensation Cafe offers a good list of potential new federal employment laws on the horizon.

Dan Schwartz at the Connecticut Employment Law Blog reminds employers that discrimination cases often hinge on whether the employer is consistent in its explanations.

Molly DiBianca at the Delaware Employment Law Blog digests recent polling data on office romances.

Michael Moore at the Pennsylvania Labor & Employment Blog discusses the important issue of who is a “management-level employee” for purposes of imputing harassment liability to an employer.

Christopher McKinney at the HR Lawyer’s Blog reports on chronic fatigue syndrome as an ADA-protected disability.

George’s Employment Blawg offers up a plaintiff-side opinion on male sexual stereotyping at work.

Discriminations talks about the disparate impact theory of, well, discrimination.

Finally, The Word on Employment Law with John Phillips draws some employment law lessons from Sesame Street.

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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.

Big verdict underscores importance of background checks

One would think that businesses with whom people entrust children or the elderly would conduct routine criminal background checks of its employees. In fact, in Ohio, it’s the law. At least one employer, however, an assisted living facility in Newport News, Virginia, unknowingly hired an employee with a long criminal history, including assault and battery. On May 28, a jury found the facility liable for failing to exercise reasonable care in hiring the former felon. The lawsuit involved the employee’s sexual assault of a resident. The ex-employee has been criminally charged with five forcible sodomy counts, three carnal knowledge counts, and one abuse and neglect count. For these acts, the jury awarded the abused resident $750,000 in damages.

There is a good lesson for all employers to learn from this example. Backgrounds checks are inexpensive. The potential exposure from hiring an employee with a criminal history, however, is large. Do your bottom line and the safety of your employees a favor and consider implementing routine criminal background checks for all employees. For information on how to use this information without running afoul of EEO laws, I recommend EEOC targets use of arrest and conviction records.

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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.

Drafting a social networking policy: 7 considerations

I could draft a perfect social networking policy using only a few words: “Be mature, be ethical, and think before you type.” Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, I offer seven thoughts to consider when drafting a social networking policy.

1. How far do you want to reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.
   
2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking, such as LinkedIn. Without turning off internet access or blocking certain sites, a blanket ban is also hard to monitor and enforce.
   
3. If you prohibit social networking, how will you monitor it? Turning off internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.
   
4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
   
5. Do you want employees to identify with your business when networking online? Because this blog is affiliated with my law firm, Kohrman Jackson & Krantz, I am cognizant that everything I write reflects on my partners and my business. Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.
   
6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business.
   
7. How will social networking intersect with your broader harassment, technology, and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence, depending on what they are posting, can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update, and fine-tune other policies.
   

For more information on social networking, revisit yesterday’s post -- Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?