EEOC to explore disparate treatment in hiring

The EEOC has spent a lot of its time lately examining employers’ hiring practices. For example, it has held public meetings looking at whether certain neutral hiring practices—such as the use of credit, employment status, and criminal and arrest records—have a disparate impact based on race. It is also currently litigating a class action in federal court in Cleveland challenging an employer’s use of credit as a hiring criteria.

Next week, the EEOC will turn its attention from unintentional hiring discrimination to intentional hiring discrimination. It has announced that it will hold a public meeting entitled, Disparate Treatment in 21st Century Hiring Decisions. Little else is known about this meeting, including the specific hiring tactics and criteria the EEOC will examine. The use of “21st century,” however, suggests that the EEOC’s agenda may include current cutting-edge hiring practices, such as the use of social media by employers to vet potential candidates (a topic I’ve covered before).

I will have much more to say about this important topic after the EEOC publishes its agenda and speakers' commentary.

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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.

How does the Howard Stern Show handle sexual harassment training?

Last week, Howard Stern’s long-time producer Gary Dell’Abate paid Conan O’Brien a visit. Among the topics they discussed was how The Howard Stern Show handles sexual harassment training for its employees. The relevant portion runs from 4:16 until 5:29.

I guess if you take a job with Howard Stern you know what you’re getting yourself into?

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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 Supreme Court to consider statute of limitations in workers comp retaliation cases

Ohio Revised Code section 4123.90 prohibits employers from taking any adverse action against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act. This statute is unique in that is has a two-stage statute of limitations:

1. Within 90 days “immediately following” the adverse action, the employer must receive written notice of a claimed violation from the employee; and
2. The lawsuit must be filed within 180 days “immediately following” the adverse action.

Both steps are required, and an employee’s failure to meet either deadline is fatal to a retaliation claim.

In Lawrence v. City of Youngstown (2/25/11), the Mahoning County Court of Appeals took up the issue of the meaning of “immediately following” in regards to the 90 and 180 day requirements. The court recognized an even split among Ohio’s appellate courts. Half of the courts that have considered the issue concluded that the 90 and 180 day requirements do not begin to run until the employee receives notice of the termination or other adverse action. The other half concluded that the effective date of the termination or other adverse action controls.

The Lawrence court sided with the latter, concluding:

This language clearly references the date of discharge, not notice of discharge. If the General Assembly had intended the time periods to begin to run upon notice of discharge, the statute could have easily been written to indicate as such. Accordingly, we find that the time limits begin to run on the effective date of discharge.

Last week, the Ohio Supreme Court agreed to hear this case [pdf] and resolve the split. Ohio employers should expect clarity on this important issue in the next 12 – 15 months.

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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.

“He grabbed her, threw her to the floor, pulled up her shirt, masturbated and ejaculated on her” = $95 million (wow)

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I’ve ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment):

• Shortly after Alford began working at Aarons, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year, and only took action after she involved the police.

Last week, a jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million. 

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor, but because the company did not do anything about him when the plaintiff complained.

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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 #180 (the “pixie dust” edition)

Last month, my family vacationed at Disney World. While the trip was planned last fall, it was a much needed (almost) week away after our ordeal in February. One of our first stops was to meet Buzz Lightyear at the Magic Kingdom. I’m sure lots of 3-year-old boys idolize Buzz, but I’m not sure anyone loves Buzz as much as my son does.

I mentioned to the PhotoPass photographer to take as many pictures as he could, explaining that Donovan had spent 3 weeks in the hospital, how much Buzz means to him, and how much him meeting Buzz meant to us. A Cast Member overheard my story, pulled me aside, and gave me a voucher for a free 8x10 picture. That voucher probably cost Disney 50 cents, yet it proved invaluable to my family that someone thought to do something nice for us.

Let this story be a lesson for employers—the little things do matter. Taking the time to spread some “pixie dust” on your workers once in a while should pay exponential dividends.

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

Weinergate

• What if you were Anthony Weiner’s boss? – from Rob Radcliff’s Smooth Transitions
• Weiner and the Same Old Social Media Lessons – from Philip Miles’s Lawffice Space
• Your Company Firewalls Are Meaningless to Your Employees. Time for a Plan B. – from Daniel Schwartz’s Connecticut Employment Law Blog
• How to Recover from a Blunder – from Harvard Business Review
• Dirty Pictures And The Internet: A Guide for Dummies – from Kashmir Hill’s The Not-So Private Parts
• Social Media Crisis Management, Weinergate, Politics, Football, and the Law – from Shear on Social Media Law
• Lessons from Weinergate – from Manpower Employment Blawg
• Women shouldn’t blame Weiner from Eve Tahmincioglu’s CareerDiva
• Another Day, Another Person Ruins Their Career On Twitter – from Chris Penttila’s Workplace Diva
• Congressional Tweet-mageddon After Weiner Scandal – from AllThingsD

(Non-Weiner-related) Social Media & Workplace Technology

• Social Recruiting a Growing Hotbed for Discrimination Claims? – from Newton Software Blog
• While employers screen job applicants on social media, lawyers assess the risk – from AllBusiness
• Electronic “Redactions” Not Always Effective: Greater Caution In Dealing With Sensitive Materials In Trade Secret Cases Necessary – from Trading Secrets
• Employee Rights and Social Media – A Summary of NLRB Enforcement Activity – from Augmented Legality

Discrimination

• The Age Discrimination in Employment Act (ADEA): Not Your Standard Discrimination Law – from Michael Haberman’s Omega HR Solutions
• Supreme Court limits an employer's ability to recoup attorney’s fees – from Eric Meyer’s The Employer Handbook Blog
• Anti-Gay Harassment Claims Need to Be Investigated – from Labor & Employment Law Perspectives
• Federal Court Reels In EEOC’s Fishing Expedition – from Employer Law Report
• Summer Jobs, Sexual Harassment – from Nolo’s Employment Law Blog
• The unemployed: a new protected class? – from John Holmquist’s Michigan Employment Law Connection
• “Acrophobic bridge worker protected by ADA” – from Walter Olson’s Overlawyered
• EEOC proposes records rule on Genetic Information Nondiscrimination Act – from Judy Greenwald at Business Insurance
• 5 signs that your sexual harassment case may be a dog – from Employment and Labor Insider
• Sixth Circuit Grants Rehearing En Banc in the Lewis Case Involving Discrimination Claims Under the ADA – from Sixth Circuit Appellate Blog

HR & Employee Relations

• America’s Pastime Part II: Outsourcing for Talent – from Rob Schwartz’s Fairness Matters
• State of Ohio Moves to Ban Credit Reports – from Nick Fishman at the employeescreenIQ Blog
• Employment Background Checks: Legal Considerations – from Small Business Support
• Should You Get Naked With Your Boss – from Evil HR Lady, Suzanne Lucas
• Point/Counterpoint - Should You Automatically Pay Severance to Anyone You Fire? – from Fistful of Talent
• Eight Threats and Traps for HR in Today’s Legal Environment – from HR Daily Advisor
• Modern Vacations, or Why You Never Really Get Away From Work Anymore – from TLNT
• How to Steal Employees – from Portfolio.com

Wage & Hour

• Are the FLSA’s Enterprise Coverage Requirements Outdated in Today’s Economy? – from Overtime Law Blog
• Juries Hand Employers Class Action Wage and Hour Victories – from Employment Class Action Blog
• FMLA, COBRA, ADA, EEOC-Not Necessarily In That Order – from Work Blawg
• Policy Limits on Vacation Travel During FMLA Leave Upheld – from The FMLA 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.

Ohio recognizes public policy tort for workers compensation retaliation in limited circumstances

Ohio has a specific statute against workers’ compensation retaliation—R.C. 4123.90. It prohibits an employer from retaliating against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act.

In Bickers v. W. & S. Life Ins. Co. (2007), the Ohio Supreme Court concluded that an employee who is fired while receiving workers’ compensation benefits is limited to brining a retaliation claim under the statute, and cannot pursue a common law wrongful discharge cause of action. This distinction is significant, because the workers’ compensation retaliation statute has limited remedies—reinstatement, back pay, and reasonable attorneys fees. The remedies is a common law wrongful discharge claim, however, are unregulated, and include compensatory and punitive damages.

In Sutton v. Tomco Machining, Inc. (6/9/11) [pdf], the Ohio Supreme Court considered whether R.C. 4123.90 also precludes an injured employee who suffers retaliation before filing a workers’ compensation claim from filing a common law wrongful discharge claim.

The facts of the case are pretty remarkable. Within an hour of DeWayne Sutton’s report of a workplace back injury to Tomco’s president, and before he could file a workers’ compensation claim for the injury, the company fired him. The employer argued that Sutton did not have a remedy. It correctly argued that R.C. 4123.90 did not provide a remedy because he had not filed a workers’ compensation claim. It also argued that Bickers precluded the common law wrongful discharge claim.

The Court concluded that because Sutton did not have a remedy available under the statute, he could pursue his common law wrongful discharge claim:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits…. The General Assembly certainly did not intend to create the footrace …, which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.

The Court, however, did not permit Sutton to seek the full panoply of tort remedies. Instead, it balanced the limited remedies of the Workers’ Compensation Act against right of employees to be free from retaliation:

The compromise established by the General Assembly must govern the relief available to employees, like Sutton, who suffer retaliatory employment action after an injury and before they have filed, instituted, or pursued a workers’ compensation claim, just as it governs the relief for employees who suffer retaliatory employment action after they have filed, instituted, or pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in R.C. 4123.90.

This case strikes the right balance. Even the most ardent employer-side advocate would have a hard time arguing for a loophole that would preclude any remedy for an employee retaliated against. By limiting the remedies to those set forth in the statute, the Court is protecting the balance created by the workers’ compensation system into which employers are required to buy.

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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.

EEOC and employers differ on the use of neutral maximum leave of absence policies

As I reported earlier this week, yesterday the EEOC held a public meeting on the use of leave as a reasonable accommodation. Opinions differed sharply on whether an employer can satisfy its obligations under the ADA by implementing a neutral leave of absence policy that caps a maximum allowable leave (for example, a policy that says, “Employees who do not return to work following a maximum of six months leave will be presumed to have resigned,” or “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return”).

John Hendrickson, an EEOC Regional Attorney who litigated this issue in the high-profile EEOC v. Sears Roebuck & Co. case (which resulted in a $6.2 million settlement), offered the following five observations on the EEOC’s view of these policies:

1. An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer’s duty of reasonable accommodation.
2. The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy.
3. Separating leave administration—like the administration of worker’s compensation benefits or disability benefits—from ADA administration is risky for employers.
4. Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers.
5. The Commission occupies a unique role in litigating these cases.

Management-side attorney Ellen McLaughlin argued the employer’s position:

One way employers attempt to control or manage the impact of employee leaves of absence on their business is to institute a neutral maximum leave of absence policy that sets a maximum duration for which an employee can be away from work…. The intent of these neutral leave programs is to provide employers with some level of control over their ability to manage their headcount and business operations. Employers know in advance how much time off an employee may take, and can track when an employee approaches that maximum in order to provide it an opportunity to begin planning coverage/replacement options sooner…. 

The case law is extremely undeveloped on the maximum leave issue, but what exists establishes that a universally applied maximum leave policy is not, per se, violative of the ADA…. In the midst of this confusion, the EEOC has begun aggressively litigating against employers with neutral maximum leave policies.

I echo Ellen’s sentiments that neutral leave policies provide employers the necessary flexibility to run their businesses in the face of leaves of uncertain duration. The EEOC needs to better consider the needs of the business community and provide greater guidance on this issue.

Employers, however, need to be practical and tread very lightly around these issues until the EEOC softens its position. The agency is aggressively pursuing businesses that enforce these neutral leave policies to the detriment of disabled employees. Unless you want to end up in the EEOC’s crosshairs, I recommend the following:

1. Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.
2. Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.
3. Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
4. Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.
5. You should document all costs associated with any extended unpaid leaves (modified schedules, added overtime, temporary hires, lost productivity, etc.) to help make your undue hardship argument, if needed.

Remembering “A, E, I, O, and You” will help you avoid the defense of a costly disability discrimination lawsuit.