Contradictory explanations buys an employer a jury trial on sex discrimination claim

There is nothing inherently wrong with an employer having more than one reason for making an employment decision. For example, you could fire an employee because she is insubordinate and because she has poor attendance. Or, you can not hire someone because she is unqualified and she dressed sloppily at the interview. However, when reasons cannot logically co-exist, you might get yourself in trouble. Peck v. Elyria Foundry Co. (6th Cir. 9/9/09) [PDF] provides a good example.

Elyria Foundry refused to hire Carolyn Peck for any of the positions for which she applied. In support of its decision, the Foundry offered five different reasons:

• Based upon a supervisor’s account of Peck’s prior work performance at another foundry, she had the beginnings of carpal tunnel syndrome.
• Peck had attendance issues at a prior job because of her children and car trouble.
• One of the positions Peck applied for had already been filled.
• The Foundry kept Peck’s application open but did not consider her for other positions because there were no available women’s facilities.
• Once the Foundry received a threatening letter from Peck’s attorney, it took no further action on her application.

The court took issue with these various explanations, but focused its attention on the timing. If Peck’s carpel tunnel and prior attendance issues barred her from employment, why did the Foundry keep her application open for other positions that were ultimately filled by men?

The next time you give more than one reason for an employment decision, run them through the common sense test to make sure that they cannot be folded back on themselves and create pretext where it might not otherwise exist.

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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.

Pretext as a four letter word

Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not? This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if so, how strong it is. One can distill the inquiry into a number of component parts, and it can be useful to do so. But that should not cause one to lose sight of the fact that at bottom the question is always whether the employer made up its stated reason to conceal intentional discrimination.

These are the words of the 6th Circuit from earlier this week in Chen v. Dow Chemical [PDF], a race discrimination and retaliation case. In 1964, U.S. Supreme Court Justice Potter Stewart famously non-defined obscenity as, “I know it when I see it.” In employment litigation we often get caught up in formal burdens of proof, legitimate non-discriminatory reasons, pretext, and direct evidence. Yet, discrimination cases are usually decided with the same informality laid out by Justice Stewart. If an employment decision looks discriminatory, then it probably is. The challenge for employers is to avoid the appearance of a made-up reason.

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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? Forced retirement is a no-no

It’s still a fairly popular misnomer that businesses can force employees to retire at a certain age. For example, last week Law.com reported on a verdict against a Connecticut pharmaceutical company that forced its Chief Patent Counsel to retire at age 65.

With the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit – but do not require – mandatory retirement:

• at age 65 of executives or other employees in high, policy-making positions.
• at age 55 for publicly employed firefighters and law enforcement officers.

Forcing an employee out is the same as requiring an employee to require. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other 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.

WIRTW #94

Time constraints lead to a shorter than usual review this week. But, I am here for my readers with what I think are the top 5 posts from the employment law blogosphere for this week (in no particular order):

• The New York Labor & Employment Law Report, with some suggestions on how to deal with employees’ social networking.

• Michael Fox’s Jottings by an Employer’s Lawyer, discussing the EEOC’s recent class action filing against UPS, and the difficult position employers are in when dealing with an injured or ill employee who needs more than 12 weeks of medical leave.

• Maryland Employment Law Developments, which attempts to answer the question, “How much privacy do employees really have at work?” The short answer – not much, but maybe more than you think.

• Mindy Chapman’s Case in Point, on employees’ access to restroom breaks.

• Paul Secunda, at the Workplace Prof Blog, who discusses the case of a New Zealand employee terminated for the egregious workplace crime of using ALL CAPS in emails.

Enjoy your Labor Day weekend. I’ll be back Tuesday with my thoughts on forced retirements under the ADEA.

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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.

Study of American working conditions presents opportunity for employers to tune up legal compliance

Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.

According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.

The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:

• 26% of employees reported being paid less than the minimum wage.
• 76% of employee who work overtime reported not being paid the legally required overtime rate.
• Of the 25% who claimed off the clock work, 70% reported it was unpaid.
• 41% of employees who had money deducted from their pay reported illegal deductions.
• Of the 20% of employees who reported making a complaint to management or trying to start a labor union, 43% experienced some form of retaliation.
• 50% of employees who reported workplace injuries to their employer claimed some form of retaliation.
• 68% experienced some pay-related violation.

You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:

• This week, the Justice Department announced that it would hire an additional 50 attorneys to increase its enforcement of civil rights violations.
• The Department of Labor previously announced that it would be stepping up enforcement of its Wage & Hour Division.
• One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations.

What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.

I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.

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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.

Sexual orientation is not a proxy for religious discrimination

Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.

Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.

In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:

• Pedreira claimed that living openly as a lesbian did not comply with her employer’s religion, and that she was terminated because she did not hold its religious belief that homosexuality is sinful.
• Prowel claimed that his co-workers harassed him because his homosexuality did not match their religious views.

The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.

It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.

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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? Fake job references?

More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.

It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.

Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.

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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.