Do you know? Affirmative action and reverse discrimination

Many employers have affirmative action plans. However, just because you have a plan does not mean that the plan should be the only decision-making factor in hiring employees. In fact, sole reliance on an affirmative action plan in hiring could lead to a claim of reverse discrimination. In Humphries v. Pulaski County (8th Cir. 9/3/09) [PDF] examined the case of a white employee turned down for every promotion for which she applied in favor of African Americans. The court held:

[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII….

To be valid, an affirmative action policy must be narrowly tailored to meet the goal of remedying past discrimination. It cannot, however, be used to maintain racial quotas. In the court’s words, it cannot be used to “unnecessarily trammel the rights of non-minorities.”

If your business has an affirmative action plan, use it as a factor in hiring decisions, but not the only factor.

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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.

Muslims perceived as suffering the worst discrimination

We are a few days past the 8th anniversary of what many consider to be the worst day in the history of our country. According to a recent survey conducted by The Pew Research Center, there is still a perception that Muslims are discriminated against more than any other religious or other group.

2,010 adults were asked the following question: “Just your impression, in the United States today, is there a lot of discrimination against ____ or not?” Here are the results:

	Yes	No
	%	%
Muslims	58	29
Jews	35	54
Evang. Christians	27	56
Athiests	26	59
Mormons	24	56
Gays & Lesbians	64	30
Hispanics	52	41
Blacks	49	46
Women	37	59

This study does not reveal actual incidents of discrimination, but people’s perception of others’ discrimination. Interestingly, the only group that fairs worse than Muslims is gays and lesbians.

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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 #95

Molly DiBianca at the Delaware Employment Law Blog reports on a CareerBuilder.com survey that 56% of employers either use or intend to use social media to background check applicants. Do you want to learn all about the role of social networking in your workplace? Then come to KJK’s next Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues.

What About Clients? suggests that lawyers not only use litigation to cure a past problem, but also as a preventative measure to prevent future problems.

One problem that needs to be cured – wage and hour violations, at least according to Tresa Baldas at the National Law Journal. As I noted last week, I couldn’t agree more.

John Gilleland, Ph.D., guest posting at Quirky Questions, shares his poignant thoughts on the impact the recession is having on jury deliberations in employment cases.

Sindy Warren at the Warren & Hays Blog teaches employers what to do when an employee cries '”Harassment.”

Michael Haberman’s HR Observations, on age discrimination. Mike’s thoughts are a nice complement to mine from earlier this week on forced retirement.

Do you want to know what non-compete agreements have in common with Sexual Chocolate? Then check out Kris Dunn, The HR Capitalist.

Darcy Dees at Compensation Cafe, on the importance of regular performance reviews.

Michael Maslanka’s Work Matters discusses how not to handle an employee’s days off to adopt a baby.

Eric Welter’s Laconic Law Blog discusses the IRS’s decision-making process for employees versus independent contractors.

This week’s review ends with what might be the worst employee training idea ever. According to Above the Law, an employee has sued a New Jersey health center after it faked a break-in and hostage situation to teach employees how to handle a crisis.

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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.

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.