Is it discriminatory for a hospital to require the same-sex treatment of patients?

According to the EEOC, a Missouri hospital discriminated against its male nurses by preferring to have female nurses treat female patients. But, is this really unlawful sex discrimination?

A “bona fide occupational qualification” defense permits discrimination based on sex, age, religion, or national origin (but not race) where the protected class is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. One example of a BFOQ is a safety-based mandatory retirement age for airline pilots.

Is the sex of the person providing medical treatment another example of a BFOQ? Or, is this the type of sex-based stereotype that Title VII is supposed to eradicate? Or, does it depend on the type of treatment being provided? Readers, what do you think?

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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 companies are using social media to hire

Are you curious how companies are using social media to screen and hire  employees? Mindflash shares the latest data (via Eve Tahmincioglu on Google+).

• 45% of employers use social sites to vet potential hires:
• 29% use Facebook
• 26% use LinkedIn
• 11% use blogs
• 7% use twitter
• 18% of employers discovered social content that influenced them to hire a candidate:
• 50% – personality
• 39% – verification of professional qualifications
• 38% – creativity
• 35% – good communication skills
• 33% – well-roundedness
• 19% – positive references
• 15% – awards and accolades
• 35% of employers discovered social content that caused them not to hire a candidate:
• 53% – provocative or inappropriate photos or other information
• 44% – content about alcohol or drug use
• 35% – bad-mouthing previous employers, co-workers, or clients
• 29% – poor communication skills
• 26% – discriminatory comments
• 24% – lies about qualifications
• 20% – confidential information about a prior employer

Do you want to know the legal risks that arise from using social media to vet job candidates, and the best practices to avoid these legal risks? Pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace.

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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.

If your workplace has “No bra Thursday,” it’s time for some harassment training

According to the Salt Lake Tribune, a Utah woman has sued her former employer, claiming she was sexually harassed at work. The allegations, according to her federal lawsuit, are outrageous:

• Her supervisor provided a written work schedule that included “Mini-skirt Monday,” “Tube-top Tuesday,” “Wet T-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.”
• Her supervisor repeatedly asked “about her breast size and talked about her breasts in front of other employees.”
• He asked her to show him her breasts, and inquired about whether she shaved her pubic area.
• He slapped her on her buttocks at least twice.
• He repeatedly asked her for oral sex.
• He offered a free mammogram when she asked for time off for a doctor’s appointment.
• He told her he was installing a shower in the office so they could shower together.
• He offered a recipe for a “sex cake.”

He also allegedly told her that she’d be fired if she did not sign a document granting him permission to sexually harass her. You can toss all of the other facts out the window. If the plaintiff can produce a piece of paper in which the employer asked her to give up her rights to be free from harassment, this case is over. And, it will be over with a huge settlement to avoid the risk of a crippling award of punitive damages.

Do I need to even say that “No bra Thursdays” are a workplace no-no?

You can read the complete list of allegations in the complaint:

Anderson v. Lone Peak Controls

 

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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.

Workplace social media becomes a federal issue, says U.S. Chamber survey

Last week, the U.S. Chamber of Commerce published the results of a comprehensive survey of the NLRB’s examination of workplace social media policies. In completing its Survey of Social Media Issues Before the NLRB [pdf], the U.S. Chamber examined 129 NLRB cases involving social media. Do not make the mistake of thinking that these issues only affect unionized businesses. As the Chamber made very clear, “a significant percentage of cases in our survey involved non-union employers with no union activity.”

The Chamber reached the following conclusions:

The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.

With respect to employer policies restricting employee use of social media, our review of cases found many specific policies alleged to be overbroad, including those that restrict discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management. The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases.

The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.

Despite the Chamber’s survey, this area of federal labor law—which affects every employer, unionized or not—remains very much unsettled. Today’s protected activity is tomorrow’s unprotected employee rant, and vice versa. In other words, taking action against employees for social media comments that discuss wages, benefits, or other terms or conditions of employment remains risky.

If you are interested in learning more about this important issue, the Chamber’s full report is available from its website. I also recommend the chapter written by Seth Borden for Think Before You Click: Strategies for Managing Social Media in the Workplace, in which he discusses these issues in great depth.

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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 #188 (the “shill” edition)

I’m hosting the Employment Law Blog Carnival on August 17. If you would like your blog featured, email me the link by August 12. There are only two rules: the content must be employment-law-related, and the link must be to a post on your blog.

I’m also honored to be speaking on social media issues at some cool events over the next few months:

• On August 11, I am presenting Emerging Risks & Social Media for the New York chapter of the Institute of Internal Auditors.
• On September 15, I am co-presenting, with Mike Haberman, a webinar entitled Social Media for HR Pros for Business Management Daily.
• On November 17, I am presenting Think Before You Click: Practical & Legal Guidance to Effectively Manage Social Media in the Workplace, as part of GMSI’s 2011 HR & Employer Compliance Summit, a 3-day event in San Diego.

Of course, my book on social media and HR, Think Before You Click…, is still available now from Thompson Publishing.

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

Discrimination

• “Purple Pride” Overshadowed By “Wigger Day” – from Stephanie Thomas’s The Proactive Employer Blog
• Pottymouths don’t usually win sexual harassment lawsuits – from Eric Meyer’s The Employer Handbook Blog
• Gabby Giffords: Working with chronic illness – from CareerDiva, Eva Tahmincioglu
• Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you – from Robin Shea’s Employment and Labor Insider
• GINA prohibits financial incentives as inducement to provide genetic information as part of employee wellness program – from Employment Law Matters
• EEOC sues predominantly African American hospital - for discriminating against black employees – from Developments in Employment Law
• Lillie Leon, 80-Year-Old Kindergarten Teacher, Sues City Over Firing From Public School – from CBS New York

Social Media & Workplace Technology

• How much time are your employees on Facebook? – from Rob Radcliff’s Smooth Transitions
• 76% of Businesses Use Social Media but Fewer than Half have Policies in Place – from Kara Mignanelli’s Social Axcess
• 45% of Employers [Still] Don’t Have a Social-Media Policy – from Molly DiBianca’s Delaware Employment Law Blog
• Google+: Five legal issues for businesses – from MacWorld
• The Internet Equalizer—The Smart Phone – from Jessica Miller-Merrell’s Blogging4jobs
• E-Discovery and Social Media in Workplace Investigations – from i-Sight Blog
• The Simple Way to Avoid Social Media Failures – from Harvard Business Review
• Think the iPad is big now? We’ve only just begun – from The Apple Blog
• Missouri Law Bans Social Media Contact Between Teachers and Students – from Bradley Shear’s Shear on Social Media Law
• Can my boss monitor my computer and then fire me for being unproductive? – from Ask a Manager

Employee Relations & HR

• Should You Care That Your Employees Are Going to a DayGlow Event? – from Dan Schwartz’s Connecticut Employment Law Blog
• Stupid HR: “Sorry It’s Not In the Policy Manual” – from Mike Haberman’s Omega HR Solutions
• Can They Really Say That? What Employers Can Say About You When Giving References – from Donna Ballman’s Screw You Guys, I’m Going Home
• Hotel Employee with Criminal Record Accused of Raping Guest – from Nick Fishman’s employeescreenIQ Blog
• Why Ex-Con Job Seekers Shouldn't Be Discriminated Against – from Time
• Why Should Employers be Fair? – from World of Work
• Employee Leaving? How About We Not Let Them Send an Email to Everyone? – from Lance Haun at TLNT
• From “Workplace Flexibility” to Smart Scheduling – from Work and Family Blog
• Physician Noncompetes: Part 1 Reasonable Limitations On Time And Geographic Scope – from Russell Cawyer’s Texas Employment Law Update
• Ohio Smoke-Free Workplace law is working – from Cincinnati.com
• More People Are Using Smartphones To Secretly Record Office Conversations – from Business Insider

Labor Relations

• Some Employees’ Online Rants Cross the Line: New Guidance From the NLRB – from Brian Wassom’s Augmented Legality
• When Can Employers Lawfully Fire an Employee for an Offensive Facebook Post? Ask the NLRB – from Workplace Privacy Counsel
• Facebook Firings: Feds, Managers Navigate “New Territory” In Employment – from the Huffington Post
• NLRB Creates Lead Technology Counsel Position – from Labor Relations Today
• The Lull Before The Storm: Blizzard Of NLRB Activity Coming – from Labor Relations Update
• NBA Files Suit And Charge Against Players Union – from Workplace Prof 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.

Where does your state rank in discrimination filings? Ohio … we’re not so bad

According to Bloomberg Businessweek, 2010 was a banner year for workplace discrimination claims. Nationwide, there was a record 99,922 charges of discrimination filed. How does your state rank? Businessweek figured that out too. For example, my state, Ohio, ranks 10th, which is not all that bad given that Ohio is the 7th largest state by total population.

Here’s the list of top 20:

1. Texas (2nd largest state by total population)
2. California (1)
3. Florida (4)
4. Georgia (9)
5. Indiana (15)
6. Illinois (5)
7. Pennsylvania (6)
8. North Carolina (10)
9. Tennessee (17)
10. Ohio (7)
11. Alabama (23)
12. New York (3)
13. Michigan (8)
14. Colorado (22)
15. Virginia (12)
16. Arizona (16)
17. Missouri (18)
18. Mississippi (31)
19. Arkansas (32)
20. Washington (13)

Based on total population, Ohio does a little better than expected. New York and Washington do much better than expected. Indiana, Tennessee, Alabama, Colorado, Mississippi, and Arkansas do much worse than expected.

Just one more reason for companies to consider Ohio for their operations—you’re less likely to be sued here.

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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.

6th Circuit strikes back against union’s self-help protest

When does a union protest turn from lawful, protected conduct to unlawful harassment? A case decided yesterday by the 6th Circuit provides some guidance.

Pulte Homes, Inc. v. Laborers’ International Union of N. Am. (6th Cir. 8/2/11) [pdf] starts out like any ordinary dispute between an employer and a union over the termination of a union-supporting employee. The union filed an unfair labor practice charge with the NLRB, claiming that Pulte fired the employee because he wore a pro-union shirt, and not because of the poor performance alleged by the company.

Not content with letting the NLRB process the termination, the union took matters into its own hands. It used a paid auto-dialing service to bombard Pulte’s sales offices and three of its executives with thousands of protest phone calls, jamming access to Pulte’s voicemail system and preventing its customers from reaching the company. It also urged its members, through a posting on its website, to “fight back” by sending emails to specific Pulte executives. The members’ compliance overloaded Pulte’s email system. Many of the communications included threats and obscene language. The “protest” resulted in Pulte temporarily shuttering its operations.

The 6th Circuit took issue with these tactics, and permitted Pulte to proceed with its claim against the union that the phone calls and emails constituted an unlawful “transmission” under the Computer Fraud and Abuse Act. The CFAA makes it unlawful to “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” The court concluded that the union’s onslaught of emails and voice mails, plausibly designed to disrupt Pulte’s business by bogging down its systems, met this definition.

What is the moral of this story, no matter the side of the table on which you sit? Courts hate self-help. If you have a legal remedy available, use it. Don’t take matters into your own hands. More often than not, you’ll be doing more harm than good.

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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.