We’ve come a long way … and we still have a long way to go

In 1968, United Artists pulled 11 Looney Tunes and Merrie Melodies cartoons from televised syndication, deeming their portrayal of African Americans too offensive for contemporary audiences. The following Bugs Bunny cartoon, All This and Rabbit Stew (1941), was one of those 11:

The following is an excerpt from an EEOC press release, circa June 2011, announcing the filing of a racial harassment case:

According to the EEOC’s complaint, from as early as May 2007 through at least June 2008, Contonius Gill, a truck driver, and other African-American employees were repeatedly subjected to unwelcome derogatory racial comments and slurs by employees and managers at A.C. Widenhouse, Inc. These comments and slurs included “n----r,” “monkey,” and “boy.” On one occasion Gill was approached by a co-worker with a noose and was told, “This is for you. Do you want to hang from the family tree?” The complaint alleges that on another occasion, the company’s general manager told Gill, “We are going coon hunting, are you going to be the coon?”

Need I say more?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

How NOT to respond to an employee’s pregnancy

If an employee with low sales numbers announces her pregnancy, do you:

1. congratulate her and continue to treat her the same as before the announcement, or
2. ask others, “What are we going to do about that?”

According to the plaintiff in Majer v. Lexion Medical, her employer chose option 2, and will pay the price for it.

When the court put that damning statement together with evidence that the employer did not terminate at least one non-pregnant employees with worse sales numbers than the plaintiff, it concluded that it had “serious doubts” about the legitimacy of the decision-making process that led to the termination. In more technical terms, it denied the employer’s motion for summary judgment, sending the case to a jury trial.

As long as managers and supervisors make these types of comments, I won’t worry too much about the viability of my chosen line of work.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

The obligatory post about Google+

On June 28, Google launched its latest foray into social networking, Google+. Since its lauch, Google+ has created quite the buzz around the Internet. For example, one report suggests that Google+ accounted for an astounding 35% of all tweeted news links during its launch week. There has already been a ton written about Google+. If you want to read up on its ins and outs, I suggest the excellent the guides posted on Social Media Today or the Social Media Examiner.

For lack of a better description, Google+ is like Facebook, Twitter, and LinkedIn all rolled into one shiny, clean, new interface. Its standout feature is called Circles, which allows you to segregate your contacts into defined groups, which in turn allows you to determine which content you push to which groups. Thus, you could send an update about your kids to your family and friends, and comment on a news story to your business contacts. It has the immediacy of Twitter, combined with the functionality of Facebook, with the added benefit of being about to customize who sees what.

What does all this mean to employers? It’s too early to say. According to Dan Schwartz, on his Connecticut Employment Law Blog: “Google+ isn’t something to worry about. Yet. Only early adopters such as myself are on it now.  It’s still a long way away from mass adoption.” Yet, he cautions, “Despite an employer’s efforts to control information, Google+ may lead to yet another wave of lesser privacy and more collaboration. And more opportunities for less-than-noble employees to pass along your company secrets.”

I agree. While it’s way too early to know the impact Google+ will have on the workplace, here’s one potential problem. Employers who are Facebook friends with employees, or who follow employees on Twitter, have the ability to learn what their employees are saying and doing online. Because Google+’s Circles allows one to decide who sees what, it has the potential to allow employees to shut people out from seeing certain information, including their employers. Thus, could an employee trash an employer without the employer ever finding out? While that risk exists regardless of the medium, Circles’ unique privacy features heightens this risk.

Philip Miles, on his Lawffice Space blog, makes another excellent point: regardless of the tools, it is important for employers to understand social media generally. As to that goal, I have two options for you: 1) you can buy the soon to be published (this week?) HR and Social Media: Practical and Legal Guidance, and read all about the intersection of social media’s legal risks and your business’s HR practices; and 2) you can listen to an upcoming Proactive Employer Podcast, when my contributing authors to HR & Social Media and I will engage in a one-hour talk, moderated by host Stephanie Thomas, discussing all things social media. I have a feeling Google+ will come up more than once.

Lastly, if you are on Google+, feel free to connect with me at +Jon Hyman. If you are not yet on Google+, but want in on the action, email or DM your gmail for an invite to check it out.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #184 (the scholarly edition)

A few days ago I received the following request, via Twitter, from a Jason Tenenbaum (@t10nbaum), a law student at Hofstra University:

I agreed, and Jason provided the following:

The Hofstra Labor & Employment Law Journal invites submissions for its Fall 2011 issue on all topics relating to labor and employment law. The issue is tentatively scheduled for publication in early December 2011. Additionally, we are specifically seeking articles on the topic of the intersection between labor and employment law and the financial sector for our symposium to be held in November 2011. While we prefer completed papers, authors interested in the symposium but whose articles are not yet ready for publication are encouraged to contact us as we are still seeking participants/contributors. We ask that all articles be submitted by August 15, 2011. Please submit your manuscripts (along with any appropriate supporting documents) or any questions to Ashley Behre, Managing Editor of Articles, at laboremploymentlaw@hofstra.edu. Thank you for your interest. 

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

Discrimination

• This term’s top 5 employment-law Supreme Court rulings … in haiku – from Eric Meyer’s The Employer Handbook Blog
• Retaliation Timing—How Soon is too Soon? – from Philip Miles’s Lawffice Space
• Employee misconduct and ADA protections – from Walter Olson’s Overlawyered
• Think Twice Before Firing for Misconduct Related to a Disability – from SmartHR
• Age Discrimination: Going Away or Alive and Well? – from Michael Haberman’s Omega HR Solutions
• What’s in a name? Potential for race discrimination – from Employment Law Worldview
• What the Supreme Court’s Wal-Mart Decision Means for You – from Tim Eavenson’s Current Employment
• Judge OKs Class Action Lawsuit Against Disney Parks on Behalf of Legally Blind – from Stitch Kingdom
• 6 ways to avoid being the EEOC’s next hiring “test case” – from Employment and Labor Insider

Social Media & Workplace Technology

• A Modest Proposal: Social Network Background Checks Still Concern Me – from Nick Fishman’s employeescreenIQ Blog
• I Flunked My Social Media Background Check. Will You? – from Gizmodo
• No Friend of Mine: Court Denies Facebook Discovery – from Molly DiBianca’s Delaware Employment Law Blog
• Not Even An In-Person Marriage Proposal? Really?? – from Social Media Employment Law Blog
• Entenmann’s Discovers a Fourth Type of “Self-Destructive Corporate Tweet” – from Inside Opinions: Legal Blogs
• Email Etiquette and the Perils of “Reply All” – from Harvard Business Review
• Confidential Information: Social Media at the Workplace – from Unfair Competition & Trade Secrets Counsel
• No-Soliciting Provisions in a LinkedIn World – from Koncision
• Does Google+ Put Google On the Plus Side? – from Lawyerist
• Why Google+ could find a home in the workplace – from GigaOm
• Could Google+ Be a Useful Work Tool? – from Alexandra Levit’s Water Cooler Wisdom

Employee Relations & HR

• Refusing to Hire Tobacco Users—Valid Argument or Just Blowing Smoke? – from The Proactive Employer Blog
• Is Your Future Boss Horrible? A 10 Point Reference Check – from Bob Sutton
• Expense Reports That Get You Fired: Did the Receipt for Your Company Picnic Look Like This? – from The HR Capitalist, Kris Dunn
• How well does your organization respond to employee feedback and criticism? – from David Yamada’s Minding the Workplace
• The Unemployment Rate, Mismatched Skills, and …Non-competes? – from Trading Secrets
• Avoiding Whistleblower Claims—It’s All in the Employer’s Response – from Michigan Employment Law Advisor
• Make sure employees know you’re serious about deterring fraud – from HR Cafe

Wage & Hour

• Employee Must Be in Close Physical Proximity to Ill Family Member to Satisfy FMLA “To Care For” Requirement – from The FMLA Blog
• Plaintiff must demonstrate prejudice in order to be entitled to relief under the FMLA – from Employment Law Matters
• Bill Would Extend FMLA Benefits and Protections to Additional Family Members – from Washington D.C. Employment Law Update
• DOL: Houston Restaurants Violated FLSA By Imposing 91-Hour Workweek and Not Paying Overtime – from Joe’s HR and Benefits Blog
• 10 Things You Need to Know Before You Demand Your Work Break – from Screw You Guys, I’m Going Home

Labor Relations

• Unions in Decline? National Labor Relations Board to the Rescue! – from TLNT
• Chamber Asks NLRB Not to Rush Rules Shortening Union Elections – from The ChamberPost
• Big business v. the NLRB – from John Logan at The Guardian
• NLRB to Healthcare Employers Facing a Strike: You Can Ask, But Employees Don’t Have to Tell – from Labor Relations Update
• Supreme Court will decide whether union’s assessment for political expenses must be preceded by Hudson notice – from LawMemo Employment Law Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

ADA’s associational disability provision does not shield poor-performing employees from termination

Eugene Stansberry, who sued his former employer for disability discrimination, is not disabled. His wife, however, is, suffering from Polyarteritis Nodosa, a rare and debilitating autoimmune disorder. Stansberry sued Air Wisconsin Airlines under the ADA’s “associational discrimination” provision. He claimed that his employer terminated him because of unfounded fears that he would be distracted at work on account of his wife’s disability. The 6th Circuit, in its first reported decision on this seldom-litigated provision of the ADA, affirmed the dismissal of Stansberry’s case.

Section 12112(b)(4) of the ADA prohibits employers from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

More informally, this provision prohibits three types of discrimination against employees associated with, or related to, someone with a disability:

1. Discrimination based on expense: where an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer.
2. Discrimination based on disability by association: where the employer fears that the employee may contract the disability of the person he or she is associated with (e.g., HIV), or the employee is genetically predisposed to develop a disability that his or her relatives have.
3. Discrimination based on distraction: where the employee is inattentive at work because of the disability of someone with whom he or she is associated.

Stansberry pursued his claim under the distraction theory. The 6th Circuit, however, concluded that because an employer is not required to provide a reasonable accommodation to nondisabled workers under the ADA’s associational disability provision, the distraction theory does not shield a poor-performing employee from termination.

The court drew an important distinction between an employment decision based on actual poor performance, and one based on a mere fear that the disability of one with whom the employee has a close relation or association might cause poor performance. The ADA protects the latter, but not the former:

Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife’s disability might prevent him from performing adequately, Air Wisconsin’s conduct is not prohibited by this section of the Act. While Stansberry’s situation is very unfortunate, he has not offered anything to show that his wife’s disability was in any way connected to Air Wisconsin’s decision to discharge him. The only connection is that it possibly caused his performance to slip. Therefore, Air Wisconsin’s decision to terminate Stansberry does not run afoul of the Act.

As this case illustrates, the best defense against a distraction-based associational disability claim is the employee’s actual poor performance. For this reason, careful and consistent documentation is key to an employer’s ability to successfully defend against such a claim.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC announces record settlement in ADA case challenging rigid attendance policy

Last month I reported on the EEOC’s public meeting on leaves of absences as ADA reasonable accommodations. At the time, I recommended the following:

Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.

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.

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.

Today, the EEOC reported a record settlement in a disability discrimination class action lawsuit that underscores my points:

Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by EEOC…. The suit … said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans….

The EEOC charged that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

According to the EEOC, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” I could not agree more. If you are considering taking an adverse action against an employee whose medical leave has butted up against a rigid attendance or leave policy, please take 15 minutes and call your employment counsel first.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

The “when” of counting employees for damage caps in federal discrimination cases

Counting is wonderful,
Counting is marvelous,
Counting’s the best thing to do.
Counting is happiness,
Counting is ecstasy,
I love to count, don’t you?
– Counting Is Wonderful, Sesame Street

Under the Civil Rights of 1991, the sum of the non-economic damages (future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other non-pecuniary losses, and punitive damages) in Title VII, ADA, and GINA cases is capped between $50,000 to $300,000, depending on how many employees a defendant “has … in each of 20 or more calendar weeks in the current or preceding calendar year.” According to Hernandez-Miranda v. Empresas Díaz Massó, Inc. (1st Cir. 6/29/11), when you count employees for purposes of determining the number of employees depends on how you define “current.”

In that case, a jury awarded the plaintiff $300,000 in damages in her sexual harassment lawsuit, in which she proved that during her employment as a construction worker, she was forced to perform oral sex on a supervisor multiple times and was also subjected to extreme, continuing sexual abuse by coworkers and supervisors, all of which her employer ignored. The district court reduced the jury award to $50,000, using the year of the verdict to measure the number of employees.

The 1st Circuit, falling in line with other cases from the 4th, 5th, and 7th Circuits, concluded that the “current” year is the year the discrimination occurred, not the year of the verdict. In doing so, the court examined the policies behind the statute’s caps on damages:

It is clear that Congress did intend to protect …smaller employers … from ruinously large awards…. Congress, we believe, intended such protection for those who were small employers at the time of the discrimination, and not those who by happenstance or design became smaller employers between the time of discrimination and the time of the verdict.

This construction best serves Title VII’s purpose of encouraging resolution of disputes before litigation commences. This purpose … is best advanced by providing clarity and certainty as to the size of potential damage awards from the outset of a dispute. [Non-economic damages] are inherently more difficult to value precisely than the back pay damages traditionally available under Title VII, rendering this type of clarity and certainty all the more important in allowing litigants to make informed decisions about settlement.

Clarity and certainty of potential liability also allows for both sides to set realistic litigation budgets and evaluate whether cases are worth bringing and defending. Such clarity and certainty allows businesses to set adequate reserves, disclose those reserves in annual reports as necessary, and make assessments about whether and how much to insure against the risk of litigation.

Therefore, a court must count the number of people employed when the discrimination took place. The number of employees at the time of the verdict is irrelevant.

The court also concluded that because an employer must affirmatively move to apply the damage caps, it is the employer’s burden to prove the number of employees during the relevant time period.

This case has three important takeaways for businesses:

1. Depending on a business’s size, these caps can have sizeable implications. For example, the ruling in Hernandez-Miranda increased the recovery from $50,000 to $200,000. If you are a small employer (500 or fewer employees) defending a Title VII, ADA, or GINA lawsuit, you omit evidence of the number of employees at your peril.
2. If it makes a difference, introduce evidence of the number of employees both during the year of the discrimination and during the year of the trial. Until the Supreme Court weighs in on this issue, the law is in flux. There is no guarantee that this court will have the final say on this issue, and a different circuit can reach a different result.
3. Ohio’s tort reform statute, which also provides caps for punitive damages, but which lacks the same language as its federal counterpart, is likely unaffected by Hernandez-Miranda. Ohio small employers defending state-law claims should not necessarily look to the Hernandez-Miranda ruling for relief.