Silence can be golden in defending discrimination cases

Ben Franklin once said, “As we must account for every idle word, so must we account for every idle silence.” In Young v. Galion, LLC (N.D. Ohio 9/17/10) [pdf] the court latched onto the plaintiff’s silence dismissing his age discrimination claim:

[T]he major flaw in plaintiff’s case is his inability to provide any evidence of a nexus between his termination and any discriminatory motive. He made no protest to that effect to the defendant, and never mentioned it in conversations with a fellow employee with whom he had a close relationship. Plaintiff’s deposition testimony was clear as regards the fact that he had no inkling that age bias purportedly entered into the decision to discipline or terminate him prior to meeting with an attorney subsequent to his termination.

One of the things I look for in defending any discrimination case is whether the employee complained of discrimination during his or her employment. While it is not required that one complained it certainly makes the claim of discrimination appear less believable if the plaintiff never raised the issue with anyone until the filing of the lawsuit.

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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 #145 (the bad legislation edition)

Earlier this week, I urged you, my readers, to take a stand against the Paycheck Fairness Act by calling or emailing your Senators and expressing your opposition to this bill. The following bloggers share my concerns (albeit some more than others):

• Read This Before You Decide on Paycheck Fairness Act – from Stephanie Thomas’s The Proactive Employer

• One last push for the misnamed Paycheck Fairness Act – from Carter Wood at PointOfLaw Forum

• Paycheck Fairness Act Poised for Passage – from Ann Bares at Compensation Force

• Paycheck Fairness Act: You Decide Is This Necessary? – from Michael Haberman’s HR Observations

• Labor Secretary and Lilly Ledbetter Push for Paycheck Fairness Act – from Shopfloor.org

• A Late Addition to the Roster: Paycheck Fairness Act Finally Appears in the Senate – from Employment Class Action Blog

• Fair Pay Isn’t Always Equal Pay – from Christina Hoff Sommers at the New York Times

• Unfair “Paycheck Fairness Act” shafts workers with dangerous jobs; equal pay for unequal work – from Hans Bader at DC SCOTUS Examiner

• “Wage Discrimination Touches Everyone,” Says Lilly Ledbetter – from BLR

Here’s the rest of what I read this week:

Discrimination

• Italian-Americans choose the wrong causes – from Rob Schwartz’s Fairness Matters

• Dissecting the EEOC’s Position on Criminal Background Checks – from employeescreenIQ Blog

• Muslims Report Rising Discrimination at Work – from Steven Greenhouse at the New York Times

• McDonnell Douglas Bites the Dust in Tennessee – from Michael Fox’s Jottings By An Employer’s Lawyer

• Many Types of Evidence Help Prove a Discrimination Case – from Tom Crane’s San Antonio Employment Law Blog

• Tenth Circuit Decides Important Age Discrimination Case – from Today’s Workplace

• Should Employers Try More Cases Before Juries? – from Patrick Smith’s Iowa Employment Law Blog

• The Internet - The Next Frontier for the ADA: Will Your Website Comply? – from Pennsylvania Labor and Employment Blog

• Harassment complaints: Don’t let your corrective action be the tree falling in the woods – from Sindy Warren at the Warren & Hays Employment Law Blog

• Caution: Improper Harassment Investigations Can Result in a Hostile Work Environment Claim – from Wyatt Employment Law Report

• Employee Sues, Settles, Gets Rehired – from Workplace Prof Blog

• Plaintiff failed to show that Facebook pics supported hostile workplace claim – from Evan Brown’s Internet Cases

Wage & Hour

• The FMLA Connection (in Connecticut) to Organ Donors and How Employers Can Help – from Dan Schwartz’s Connecticut Employment Law Blog

• Tougher regulations and penalties when employing minors – from Employment Law Bits

• OSHA’s Applicability to NFL – from The Word on Employment Law with John Phillips

• NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service – from The FMLA Blog

• Seventh Circuit Clarifies Overtime Damages For Misclassified Employees – from Wage and Hour Laws Blog

• Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim – from FMLA Insights

• Congress Proposes Additional Independent Contractor Legislation: “The Fair Playing Field Act” Receives Strong Support From White House – from Hunton Employment & Labor Law Perspectives™

Employee Relations

• B is for Bully – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why You’re More Likely Than Ever to be Held Hostage Over That Office Romance – from Kris Dunn’s The HR Capitalist

• Employee privacy: Audit uncovers on-the-job sexting – from Stephen Meyer’s HR Cafe

• Superbug Reminds Employers to Get a Pandemic Policy – from Delaware Employment Law Blog

• They Know Who You (and your employees) Are! – from Philip Miles’s Lawffice Space

Trade Secrets and Non-Compete Agreements

• Eight Reasons Small Businesses Should Use Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Noncompete Agreements: Stopping Former Employee From Soliciting May Not Protect Business – from Rush Nigut’s Rush on Business

• Protecting your business from an employee departure - the IT response – from Rob Radcliff’s Smooth Transitions

• Why Should I Be Concerned If Only One of My Sales Managers has Signed the Company Noncompete/Confidentiality Agreement? – from Trade Secret / Noncompete Blog

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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.

Does rampant age discrimination in this job environment make sense?

Motoko Rich writes in the New York Times that older unemployed workers may never work again:

Of the 14.9 million unemployed, more than 2.2 million are 55 or older. Nearly half of them have been unemployed six months or longer, according to the Labor Department. The unemployment rate in the group—7.3 percent—is at a record, more than double what it was at the beginning of the latest recession.

After other recent downturns, older people who lost jobs fretted about how long it would take to return to the work force and worried that they might never recover their former incomes. But today, because it will take years to absorb the giant pool of unemployed at the economy’s recent pace, many of these older people may simply age out of the labor force before their luck changes.

I cannot accept an argument that businesses do not desire older workers. Conventionally, a business might choose to hire young because of a belief that a more experienced candidate would demand a higher salary. Thus, even though a younger hire would require more in the way of sunk costs (training, etc.), he or she would make up for it with lower pay.

This argument no longer holds true. Do you think for a minute that anyone, no matter the age, who finds himself or herself unemployed for an extended period of time has any leverage to make salary demands? Thus, businesses are in a position to hire more experience for less pay. Assuming starting salaries are equal, which candidate would you hire: the 25-year-old with scant experience, or the 50-year-old with decades of experience? The former will cost your business time and money in training, along with lost productivity. The latter will bring your company a skill-set that will let him or her hit the ground running with little or no training. To me, the decision is a no-brainer. For this reason, I simply cannot accept Mr. Rich’s argument that those 50 and older might find themselves unemployed in perpetuity.

[Hat tip: The Word on Employment Law with John Phillips]

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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.

Social media isn’t the only media that can come back to haunt you

It seems that every day, there is another example of an employee who got in trouble for something posted on Facebook, or Twitter, or one of the myriad other social media websites. This week’s story—via The Word on Employment Law with John Phillips—concerns an Ohio teacher busted for messaging on Facebook with a student about having sex. These issues, though are not new. They have just become more prominent because of the prevalence and pervasiveness of social media in our lives.

For example, consider the case of Christine O’Donnell. A mere five days after she won the Delaware Republican senatorial primary, comedian-cum-pundit Bill Maher ran on his current TV show an 11-year-old clip from Mr. Maher’s old TV show of Ms. O’Donnell discussing her trifling with witchcraft as a teenager. CNN.com has the details (and the video):

“I dabbled into witchcraft - I never joined a coven. But I did, I did…. I dabbled into witchcraft,” O’Donnell said during a 1999 appearance on the show, which ran on ABC. “I hung around people who were doing these things. I'm not making this stuff up. I know what they told me they do.”

She then described one of her first dates—with a witch “on a satanic altar.”

“I didn't know it,” she said. “I mean, there's little blood there and stuff like that. We went to a movie and then had a midnight picnic on a satanic altar.”

Stories like these will become more prevalent as social media continues to pervade every aspect of our lives. The question for employers to answer is to what extent revelations like those surrounding Christine O’Donnell will play (and should play) in decisions affecting the hiring of new employees and the retention of existing employees. Should a decades-old youthful indiscretion disqualify someone from employment? We all have things in our past that we hope do not get discovered in our present. Social media, however, makes our pasts that much harder to distance ourselves from.

I offer no answers, but merely raise the issue for consideration as we continue our metamorphosis into a society that favors public disclosure over personal privacy.

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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.

Paycheck Fairness Act poised for passage - This is a huge deal for employers

The Washington DC Employment Law Update is reporting that the Senate is set to start debate on the Paycheck Fairness Act, perhaps as early as this week. Employers, this news is huge. The Paycheck Fairness Act has the potential to revolutionize (and not in a good way) companies' payroll practices. For more on why you should be very concerned about this legislation, please take a few moments and read my summary from a few months ago -- What is the Paycheck Fairness Act and why should employers be concerned? Then, take a few more moments and call or email your Senator to express your opinion that this legislation should not pass:

• Senator Sherrod Brown: 888-896-6446, or brown.senate.gov/contact
• Senator George Voinovich: 202-224-3553, or voinovich.senate.gov/public/index.cfm?FuseAction=Contact.ContactForm

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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? Men are entitled to protection from sexually hostile work environments too

The typical sexual harassment case involves a man harassing a woman. Harassment, however, isn’t limited to just man-on-woman. The umbrella of sexual harassment also includes man-on-man, woman-on-woman, and, as recently discussed by the 9th Circuit, women-on-men. In EEOC v. Prospect Airport Services (9th Cir. 9/3/10) [pdf], the 9th Circuit held that that a female co-worker’s “relentless” pursuit of a male employee—which included six months of constant sexual pressure and humiliation—could form the basis of a sexually hostile work environment. In ruling, the court rejected any stereotypes that man would welcome harassment from a female co-worker:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome…. [T]hat is a stereotype…. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not….

This case serves as a good reminder to review your harassment policy for completeness. Does it cover all kinds of unlawful harassment? Not just the reverse sexual harassment discussed in Prospect Airport Services, but harassment based on race, national origin, religion, age, disability, military status, genetic information, and (where applicable) sexual orientation? If not, it’s time to call your lawyer, update your policy, and re-train your employees on their non-harassment responsibilities.

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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.

More on cancer as a disability

Last week I wrote how businesses would likely see more employees claim cancer as a protected disability under the Americans with Disabilities Act. The EEOC proves my point. The agency recently announced that it has sued a Michigan company for failing to accommodate an employee who needed a reduced work schedule while undergoing cancer treatments:

According to the agency’s pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC’s suit alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC’s obligation to reasonably accommodate Nelson’s disability.

Meanwhile, in Boca Raton, Florida, a federal jury awarded Kara Jorud $8.1 million for her claim that Michael’s Arts and Crafts terminated her because of her cancer.   Ms. Jorud, suffering from breast cancer, had a double mastectomy and was ill from the follow-up chemotherapy. She claimed that her manager forced her back to work early following her surgery, required her to work while ill, and harassed her. The Palm Beach Post recounts Jorud’s manager telling her, “How often do you have to do this? You will be here on Monday after chemo.” LawyersandSettlements.com fills in the rest of the details:

In her lawsuit, Jorud said she had taken a six-week medical leave following her surgery, but within days the cancer patient began taking calls from her District Manager inquiring as to her return. Jorud was originally tasked to turn around the store’s reportedly failing operations.

Jorud returned to work less than a month after surgery because, she testified, she feared for her job.

At one point, the plaintiff brought her fiancé and his son into the store to help her shift inventory ahead of a pending delivery because she was weak from the aftereffects of chemotherapy. The cancer patient was fired three days later, reportedly one day before her next scheduled chemotherapy treatment.

The plaintiff was also accused of theft prior to her firing, a charge that Jorud later disproved and the district manager later admitted to be false, according to the newspaper account.

These cases should serve as a warning sign for employers dealing with employees with serious treatable illnesses. It is no longer enough to provide an employee the statutorily mandated 12 weeks of FMLA leave, or to merely follow one’s own leave of absence policy. Instead, as these cases illustrate, employers should consider reasonable accommodations such as part-time or modified work schedules.

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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.