It’s déjà vu all over again—Supreme Court recognizes associational retaliation

In The Gay Science, Friedrich Nietzsche explained his theory of the eternal recurrence—that if the universe is infinitely big, time is eternally long, and everything that exists in that universe is made up of a finite number of elements, then over the course of eternity everything that happens will happen again. For the theory of associational retaliation under Title VII, eternity didn’t even last four years.

In Thompson v. North American Stainless, the 6th Circuit originally recognized the theory of associational retaliation – that Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own.

Sometimes, it stinks to be right. In its unanimous opinion [pdf], the Court recognized that certain employees, within the “zone of interests” protected by Title VII, will have a valid claim for associational retaliation:

Title VII’s antiretaliation pro­vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired…. We … decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize…. 

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.

What does all this mean?

1. This supposed pro-business Court continues to be decidedly anti-business when it comes to protecting employees from retaliation, and even the most conservative members of this Court are open to expanding civil rights when it satisfies a policy they consider important.
2. Employers are now subject to retaliation for taking an adverse action against anyone “closely related” to an employee who engaged in protect activity.
3. To claim associational retaliation, the aggrieved employee must prove that the employer intended to injure the associated employee by its action against the aggrieved employee.

For employers, there are no bright-line rules for associational retaliation. The real import of this decision is the same as when the 6th Circuit first recognized this new theory of liability nearly four years ago. As I said at that time:

If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, how close is close enough? In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process? 

These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may.

An obituary for our dog

Employment law takes a break today because yesterday we put Zoey to sleep. She was born on January 26, 2005, the largest in a litter of seven. It never took long for her to convince anyone that met her that 79 of her 80 pounds was heart. She was a lover of all people and all things. Nothing in this world mattered more to her than the four people she shared her home with (except, maybe, for the occasional rabbit she chased in the backyard).

Zoey was our first child. She was our not-sure-if-we’re-going-to-have-kids-let’s-get-a-dog. I slept on the floor next to her crate for her first few nights in our home, until she became accustomed to being away from her litter. She never again doubted us because she knew she was home.

I beamed with pride when I taught her to swim as a puppy. I laughed when she would relentlessly lick the top of my bald head. I was awestruck when she placed her head on my wife’s lap during tear-inducing labor pains before the birth of our first child. I felt badly for her when she got bumped down the ladder with the birth of each of our children. I was grateful when she protected our kids as if they were own, and I loved her every time she checked on them when they cried or were ill.

I will miss her tail wagging whenever anyone would pet her. I will miss her jumping up and down when someone new came to the door. I will miss her sprinting into the kitchen and begging for an ice cube whenever she heard the freezer door opening. I will miss seeing her waiting by the front window in the study as I drove up to the house, and how she was always the first one to greet me when I came home from work every night. I will even miss her shedding, which often made our floor resemble an unkempt barbershop. I will miss her.

Last summer she tore her right rear ACL while playing. Post-surgery, I again slept nearby as she whimpered with pain. While the ACL healed, her leg never really did. She walked with limp, and aged dramatically, looking and acting much older than her nearly six years of life suggested.

December gave us yet another scare, as the anti-inflammatory medications she was taking for her leg ulcerated her intestine, causing a whole bunch of new problems. My wife nursed her child back to health.

Yet, we knew, deep down, that Zoey was living on borrowed time. The vet told us the odds – that more than half of dogs who tear an ACL will tear the other within a year. We hoped that Zoey would buck the odds, but I think we knew that she likely wouldn’t.

When she gimped into the house Saturday evening with what had been her good leg trembling high in the air, in too much pain to put any weight on it, and what had been her bad leg too weak to support her large frame, we knew it was time. Saturday night, she licked my head for the last time.

Zoey was not only a great dog; she was a beloved member of our family. I hope she finally catches that rabbit in heaven.

WIRTW #161 (the “To infinity, and beyond!” edition)

Each week, there’s a story or two that slips through the cracks that I just can’t get to. This week is no exception. Earlier this week, the U.S. Supreme Court upheld the constitutionality of NASA’s employment background check policies. For more information on this case, I recommend the following summaries and opinions of my fellow bloggers:

• Unanimous US Supreme Court: Constitutional Right to Informational Privacy Not Violated by NASA Background Check – from Workplace Prof Blog

• SCOTUS: NASA background check is constitutional – from Ross Runkel’s LawMemo Employment Law Blog

• Supreme Court: Background Investigations on Federal Contract Employees OK – from Human Resources News

• Supreme Court Upholds Constitutionality of Government Background Screens in NASA v. Nelson – from Employer Law Report

• Feds Can Require Background Checks on Contractors, High Court Holds – from Joe’s HR and Benefits Blog

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

Workplace Technology

• Employers Checking Employee E-mail: The Split Continues – from Daniel Schwartz’s Connecticut Employment Law Blog

• Using Your Employer’s E-mail: There’s Legal, and Then There’s Smart – from New Jersey Employment Law Blog

• “Belongs To The Company” Means Exactly That – from Labor Employment Law Blog

• Eleventh Circuit Ruling Strengthens Employers' Hand Against Employees who Abuse Access to Information Systems – from Workplace Privacy Counsel

• 2010 Online, by the Numbers – from the New York Times Bits Blog

• Employee Tip of the Week: Your Boss is Watching (Or Might Be, One Day) – from New York City Employment Lawyer

• Playboy on iPad renews debate over privacy, workplace rules – from Computerworld

• What Does the "Year of the Tablet" (or of the iPad) Mean for Employers? – from Workplace Privacy Counsel

Social Media

• Why Your Boss Should Be Able to Fire You Over Facebook – from the Evil HR Lady, c/o BNET

• Social Media Research + Employment Decisions: May Be a Recipe for Litigation – from Social Media Law Update

• Social-Media Guidelines Apply to Supervisors, Too – from Molly DiBianca at the Delaware Employment Law Blog

• NFL Teams and Executives Must Be Aware of the Legal Consequences of Their Social Media Usage – from Shear on Social Media Law

• Battling Information Overload Among Employees Using Employers’ Social Media Tools in the Workplace – from Digital Workplace Blog

Employee Relations & HR

• 4 ways employers can protect themselves when employees leave – from The Employer Handbook Blog

• “Golden Voice” Story is Worthy of HR Consideration – from Nick Fishman’s employeescreenIQ Blog

• When employees prepare to return from leaves of absence: what can you say? – from Sindy Warren at the Warren & Hays Employment Law Blog

• 2 GINA Employee Handbook Action Items – from Philip Miles’s Lawffice Space

• Complying with the New GINA Legislation – from CPEhr

• The Dirty Dozen Performance Appraisal Errors – from BusinessWeek

• The McDonald’s Fiasco: It Never Makes Sense to Follow Rules Over the Cliff – from TLNT

• New Filing Reminds Employers of Employee Protection for Jury Service – from Texas Employment Law Update

Discrimination

• HR Says: Is this Interview Question Legal? – from International Business Times Blogs

• ADA opinion, if followed, could impact the scope of accommodation requirements – from Work Matters

• Even the Best Employees Can Suffer Discrimination – from Tom Crane’s San Antonio Employment Law Blog

• Former Prostitute Can Raise Sexual Harassment Claim – from Atlanta Employment Lawyer Blog

• 7th Circuit Rules Oral "Right to Sue" from EEOC is Not Sufficient to Start 90-Day Period – from Wisconsin Employment & Labor Law Blog

Wage & Hour

• A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases – from Michael Fox’s Jottings By An Employer’s Lawyer

• Half-Time Damages In FLSA Misclassification Cases – from The FLSA

• Boobs and Babes in the Workplace – from Michael Haberman’s Omega HR Solutions

Labor Relations

• Will NLRB Seek Shorter Union Election Campaigns? – from IndustryWeek

• NLRB General Counsel Directs Inclusion of New Default Language in Settlement Agreements – from Labor Relations Counsel

• Supervisor has a viable claim under the NLRA when terminated or disciplined for refusing to commit unfair labor practices – from Employment Law Matters

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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 just became a friendlier state for age discrimination plaintiffs

In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action.

An open question left in the wake of Gross was whether state courts such as Ohio would follow Gross under parallel state court age discrimination statutes. Thomas v. Columbia Sussex Corp. (Ohio Ct. App. 1/6/11) [pdf] provided our first Ohio answer. It concluded that Gross does not apply under Ohio’s age discrimination statute. While the opinion somewhat muddles its discussion of Gross, the court approved what amounted to a mixed-motive jury instruction given to the jury. Therefore, mixed-motive age claims are alive and well under Ohio age discrimination statute, and the effect of Gross is limited to cases brought under the federal ADEA.

For employers, this opinion is not quite as bad as it seems. Yes, it will likely result in more plaintiffs eschewing a federal venue and filing their age claims under Ohio law, and in Ohio courts with state court juries. Ohio’s age discrimination statute, however, has a short six-month statute of limitations, as compared to 300 days one has to file an age claim with the EEOC to perfect one’s right to file a lawsuit under the federal statute. Because employees have a easier burden of proof under Ohio law, they will have to elect the shortened filing period. Employees who miss the initial six months will have to go the federal route, with its tightened burden of proof under Gross.

For businesses, the advice I gave after Gross holds true regardless of the burden of proof. Employers should meticulously document employees’ performance problems and other disciplinary action. A contemporaneously well-documented personnel file makes it that much more difficult for a plaintiff to prove that age was the motivating reason behind the termination or other adverse action.

Lessons from Children’s Lit, part 3: Knuffle Bunny

Lately, my son and I have been reading Mo Willems’ Knuffle Bunny, a lot.

Knuffle Bunny tells the story of Trixie, who loses her stuffed bunny (and prized possession) during a trip to the laundromat with her Daddy. When she discovers her loss, she tries to tell her Daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny. I don’t want to spoil the end for anyone, but suffice it to say that when we finish the book, my little guy looks up at me as says, “She’s so happy.”

What lessons can employers take away from this “cautionary tale”?

1. There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her Daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned into designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and don’t retaliate.
   


2. Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s Daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A half-assed investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

For legal compliance, don’t jump off the bridge

When I was a child, whenever I wanted to do something popular that my parents disapproved of, they would caution me, “If everyone else jumped off a bridge, would you jump too?” I hated when they said that. Yet, now that I am a parent, I find myself saying the same thing to my kids. Today, I am also going to say it to my readers.

Just because a particular employment practice is popular or widespread does not mean it’s legal. There are lots of practices in use at lots of companies that do not pass legal muster:

• Various common wage and hour exemptions.
• Treating employees as contractors.
• Refusing to pay employees for off-the-clock work.
• Failing to pay employees who work through their lunch breaks.
• Googling job applicants as the lone background screening tool.
• Lack of technology policies and social networking policies.
• Policies that prohibit discussions about wages and benefits.
• Requiring pre-offer medical exams of all job applicants..

This list could go on and on. The point is that popular employment practices aren’t necessarily legal employment practices. You should not rely on the company-next-door for your legal compliance. Instead, invest a few dollars in a comprehensive review by a qualified attorney. Heck, some of us will even get started for free.

[Hat tip: Wage and Hour Laws]

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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.

MLK Day calls for reflection about how far race relations have come, and how far we have left to go

Today celebrates the life and message of one of our nation’s most important heroes, Martin Luther King, Jr. His remembrance suggests that we consider not only how far our race relations have come in the last half-century, but also how far we have left to go. 

To reflect upon how far we have come, consider MLK’s famous “I Have a Dream” speech, one of the greatest and most significant pieces of oration ever delivered:

To consider how far we have left to go, you need only review a few posts from my archives, each of which illustrates that bigotry still pervades our workplaces and our society:

• Sadly, racism is alive and well
• Know when to fish, know when to cut bait
• Of course racism is wrong, but at least it gives me job security
• A chocolate cupcake by any other name…
• Federal court takes on the word “nigger” in a reverse race discrimination case

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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.