How far can a Cat’s Paw reach?

Last month—in Staub v. Proctor Hosp.—the Supreme Court held that employers are liable for the discriminatory animus of managers and supervisors uninvolved with the adverse action decision making, unless the employer’s decision is entirely independent of the discriminatory input of the manager or supervisor. At the time, I argued that this broad holding would make it very difficult for employers to win summary judgment in these “cat’s paw” cases. Blount v. Ohio Bell Telephone Co.—decided a mere nine days after Staub—illustrates my point.

In Blount, two former Ohio Bell employees claimed that their employer discharged them in retaliation for taking protected leave under the Family Medical Leave Act. They argued that their managers punished FMLA users more severely than non-users who engaged in the same alleged workplace misconduct. Ohio Bell, however, argued that those managers lacked the discretion to fire the plaintiffs, and that the decision to terminate was made higher up the supervisory chain. The Court, however, concluded that the plaintiffs presented enough evidence to defeat the employer’s motion for summary judgment:

Moreover, even if the decision to punish and terminate resided higher in the supervisory chain, as Defendants argue, the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub v. Proctor Hospital (holding that discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

The takeaway? If employers will be liable for the animus of managers and supervisors in all but the most unconnected of decisions, then businesses should get started training those managers and supervisors on their EEO responsibilities. If courts will hold you responsible for their actions, don’t you want some peace of mind that you did everything you could to guide those actions?

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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.

What does Chicken Little teach us about social media policies?

Last week, I had the pleasure of presenting a three-hour seminar on social media and employment law at the Labor & Employment Advances Practices (LEAP) Seminar. The one issue that garnered the most discussion from a room packed with HR professionals, business owners, and in-house counsel was the NLRB’s recent foray into the regulation of social media policies. Almost to a fault, a room of informed and knowledgeable businesspeople entered the session with the notion that the NLRB had banned companies from implementing social media policies that restrict or limit employees’ speech about their employers. I did what I could to dispel that notion. Until the Supreme Court tells me otherwise, I will not be convinced that a business cannot fire an employee who trashes its reputation, or the reputations of its management personnel, online.

My back-and-forth with the conference attendees got me thinking (and tweeting with fellow blogger Daniel Schwartz) about the law of unintended consequences. Because of how the NLRB press-released this settlement, and how the media reported on it, public perception is that social media policies cannot restrict any employee speech. For example, last week a post at Above the Law quoted a Seton Hall law professor from a CBS News interview: “Souza’s case ‘has expanded the free speech rights of American workers…. If they are communicating about the workplace, and they’re talking about their supervisors, then it’s a protected activity.’” This quote accurately summarizes the public (mis)conception about the Souza case.

If the NLRB has succeeded in scaring employers, then hasn’t the NLRB won this point? Even if rational minds conclude that employees will never be allowed to defame or disparage their places of employment or the people who work there—even in the name of protected, concerted activity—hasn’t the very threat of an NLRB charge chilled employers from implementing social media policies that regulate this type of speech?

We’ll never know if the NLRB intended this chilling effect, but the NLRB’s publicity machine has done enough for corporate America to believe that the social media sky is falling, legitimately or not.

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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.

Don’t give lip service to your harassment policy

It’s one thing to have a harassment policy. In fact, you’d be hard-pressed in 2011 to find many businesses that don’t. It’s entirely another thing, however, to have corporate culture that take the enforcement of that policy seriously. EEOC v. Dave’s Supermarkets (N.D. Ohio 3/1/11), illustrates the dangers that lurk for employers that choose to give their harassment policies lip service.

In Dave’s Supermarkets, female employees complained that the store ignored their complaints when the meat department manager (no jokes, please) sexually harassed them. The court not only denied the employer’s summary judgment motion as to (most) of the employees’ harassment claims, but also permitted their punitive damage claims to proceed to a jury trial. In refusing to dismiss the punitive damages claims, the court relied heavily on the fact that while the employer maintained a detailed anti-harassment policy, it did not follow through on its own procedures when it received the plaintiffs’ complaints.

A comprehensive anti-harassment policy involves three components:

1. The anti-harassment policy.
2. Appropriate training of all employees about that policy.
3. A consistent corporate culture that take the policy and the company’s anti-harassment stance seriously.

Having a policy and enforcing it are two different animals. A policy is only as good as the people who execute it. Training and the right corporate culture are necessary to ensure that your anti-harassment policy works as best as it should and as often as it is needed. Otherwise, you are left in the awkward (and expensive) position of having to explain to a jury why your actions didn’t match your policy.

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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 #171 (the actual retail price without going over edition)

Congratulations to Kristen ten Brink (@onthe10brink on Twitter), who submitted the winning bid to Medical Costs Price Is Right:

The actual retail price of a 19-day at the Cleveland Clinic, including all procedures, labs, doctors, etc., is $106,885.10, which is at least half of what I expected. Kristen, either email or DM me your contact information and I’ll send out your exciting prize package. And, thank you to everyone who participated.

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

Dukes v. Wal-Mart

• A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit – from Employer Law Report
• Class-Action Lawsuits: Not The Answer for Workplace Gender Discrimination – from Harvard Business Review
• The Strong Pull of a “Day in Court”; Lessons Learned from Wal-Mart v. Dukes – from Daniel Schwartz’s Connecticut Employment Law Blog
• Supreme Court Hears Oral Arguments in Dukes v. WalMart Class Action Case – from HR Lawyer’s Blog
• SCOTUS Hears Largest Employment Law Class Action Ever – from Philip Miles’s Lawffice Space
• Fatal inconsistency in Wal-Mart Stores v. Dukes? – from LawMemo Employment Law Blog
• Oral Argument Held In Wal-Mart v. Dukes – from Laconic Law Blog
• The High Court’s Dukes v. Wal-Mart Hearing: Here is What it Might Mean – from TLNT
• Analysis Of The Supreme Court Argument In Dukes – from Workplace Class Action Litigation
• “Justices Take Up Key Issue in Wal-Mart Bias Suit” – from How Appealing
• Argument recap: A fatal flaw detected? – from SCOTUSblog
• Wal-Mart Class Action Goes to US Supreme Court – from San Antonio Employment Law Blog
• Dukes Proving To Be a Hazard to Wal-Mart – from Abovethelaw.com
• Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence – from Settle It Now Negotiation Blog
• Reflections on the Supreme Court Argument in Dukes v. Wal-Mart – from TLNT
• Wal-Mart, The Missing Link, and Class Certification – from Stephanie Thomas’s The Proactive Employer Blog

Discrimination

• Booze, wild beaver, and a pregnant bartender. What! – from Eric Meyer’s The Employer Handbook Blog
• Former Employee Fired for Wearing Shorts – from San Antonio Employment Law Blog
• The Lilly Ledbetter Chickens Come Home To Roost – from Discriminations
• Is the ‘Mommy Track’ Still Taboo? – from The Juggle (WSJ)
• The USERRA does not provide a claim for hostile work environment – from Employment Law Matters
• 5 Ways Employers Make Plaintiffs’ Lawyers Very, Very Happy – from Employment and Labor Insider
• “Grace Period for ADA Modifications Proposed in Congress” – from Walter Olson’s Overlawyered
• Employment Nondiscrimination Act Back in Play – from Southwest Florida HR Law & Solutions
• I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do? – from Screw You Guys, I’m Going Home

Wage & Hour

• Some Things Don't Have to Be In Writing: Supreme Court Protects Employees Against Retaliation After Making Verbal Complaints of Wage and Hour Violations – from Washington Workplace Law
• FLSA Scenarios: How Well Do You Know the Law? – from Michael Haberman’s Omega HR Solutions
• FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple – from Employment Law 101

Social Media & Workplace Technology

• Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter – from Hunton Employment & Labor Law Perspectives™
• E-Mail, Twitter, and Unsurprising Changes – from YourHRGuy
• Court Rules That Instant Message Conversation Modified the Terms of a Written Contract – from Technology & Marketing Law Blog
• McAfee Report: Hackers Are Targeting Corporate Trade Secrets Now – from Trade Secrets Blog

Labor Relations 

• UPDATE: House Committee Votes to Amend Senate Bill 5 – from Vorys on Labor
• Ohio Set To Enact Anti-Union Bill – from Workplace Prof Blog
• Ohio’s John Kasich Signs Law Limiting Government Union Power – from LaborUnionReport
• NLRB Holds Employee’s Secret Recording of Meeting is Protected Activity – from Wisconsin Employment & Labor Law Blog
• Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent – from Joe’s HR and Benefits Blog
• Growth and evolution in the law on protected concerted activity – from Work 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.

The punishment fits the crime – appropriate corrective action in harassment investigations

An employer has an absolute obligation to investigate a complaint of harassment, and, where founded, take appropriate corrective action to stop the harassment from continuing. Next week, we’ll look at the implications of when an employer fails at the former. Today, though, we’ll look at a case that helps define scope of the latter.

In Wilson v. Moulison North Corp. (1st Cir. 3/21/11), the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction, and that the company should have immediately terminated them instead.

The court refused to armchair-quarterback the employer’s business judgment:

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct.... The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime....

We appreciate the sincerity of the plaintiff's outrage, but the discipline imposed need not be such as will satisfy the complainant.... The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.... Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice, and a court require more severe corrective action?

• If the perpetrators are repeat offenders.
• If discrimination is a long-standing problem for the employer.
• If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

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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.

Today is the final Day for Medical Costs Price is Right

Today is the last day to enter my little Medical Costs Price Is Right Contest (official rules and pictures of the fabulous prize package here). Here are the bids so far:

• $10,000
• $62,000
• $64,250
• $92,750
• $117,684.34
• $121,000
• $140,000
• $192,000
• $234,000
• $249,999
• $265,000
• $275,000
• $386,000
• $389,750.19

Remember, the closest to the actual, retail, non-insurance adjusted price of my son’s 19-day stay at the Cleveland Clinic wins. Those of you waiting until the last minute to underbid someone else now have your chance. The contest closes at 11:59 p.m. tonight, so enter now (but not often—one entry per person). I’ll announce the winner tomorrow.

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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.

Reading the tea leaves: The Dukes v. Wal-Mart oral argument

Today, the Supreme Court heard oral argument in Dukes v. Wal-Mart (transcript available here). Dukes will determine the propriety the certification of the largest sex-discrimination class action ever—a nationwide class of 1.5 million employees. I've previously covered the background of this case. If you have any doubts about the potential significance of Dukes, consider that 66 uninvolved businesses and lobbying groups filed 28 different briefs with the Court advocating for one side or the other. I’m not sure of the record for these filings, but Dukes has to be close.

According to Bloomberg Businessweek, “The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour.” According to Wal-Mart, however, the certified class “includes too many women with too many different positions in its 3,400 stores across the country. [I]ts policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.”

In pre-gaming today’s oral argument, the Los Angeles Times not only framed the issues but also the importance of this case:

The court’s ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for [the plaintiffs] could open the door for the broader use of statistics to prove job discrimination—and not just on behalf of women, but also for minorities or persons with disabilities.

However, a win for Wal-Mart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.

Reading the tea leaves, I predict a resounding Wal-Mart victory at the Supreme Court. It is no surprise that given the political makeup of the Court, Justice Kennedy is the swing vote in close cases. As Justice Kennedy goes, so goes the majority. Thus, the following exchange between Justice Kennedy and the plaintiff’s lawyer signals that employees’ string of victories in employment cases may be coming to an end:

   Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

   A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

   Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

Suffice it to say that if the key vote on the Court does not fully understand the plainitffs’ argument, Wal-Mart is feeling pretty good about its chances right now.

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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.