Is spike in religious discrimination claims a reflection of our polarized society?

We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.

We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):

Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.

“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.

Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.

Federal Court pilot program tries to simplify discovery in employment cases

No one enjoys paper discovery. Any practitioner who tells you otherwise is either insane or lying. It’s time-consuming and expensive to gather and review information to produce, and it’s painful to squabble with opposing counsel over information withheld.

In an attempt to address and alleviate some of these concerns, the Federal Judicial Center has published its Pilot Initial Discovery Protocols for Employment Cases Alleging Adverse Action [pdf]. These protocols set forth the documents and categories of information that the plaintiff and defendant must turn over during the initial disclosure process, voluntarily and without a formal request, and no later than 30 days after the employer files its answer or responsive pleading. Molly DiBianca’s Delaware Employment Law Blog provides an excellent summary.

These disclosures are comprehensive, and cover many of the documents that will be exchanged in most garden-variety discrimination lawsuits. Of all of these disclosures, I want to point out one curiosity. Employers are not required to disclose the entire employee handbook, but only its table of contents and index. The only policies that employers are required to initially turn over are those “relevant to the adverse action in effect at the time of the adverse action,” such as discipline or EEO policies. 

In light of these protocols, maybe we need to reconsider the rote production of entire employee handbooks in discrimination cases. Maybe we also need to reconsider the inclusion of tables of contents and indices in handbooks, to limit their discoverability at the outset litigation in federal court.

Bullying and at-will employment

David Yamada is a law professor and the director of the New Workplace Institute at Boston’s Suffolk University Law School. He is also the author of the Healthy Workplace Bill, draft model legislation that, if ever passed, would impose liability on employers for employees who are bullied in the workplace, regardless of any protected status.

Yesterday, on his blog (Minding the Workplace), Professor Yamada made the following argument in favor of generalized anti-bullying legislation:

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless…. In America—in contrast to many other nations—at-will is the presumptive employment relationship. This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

In other words, Professor Yamada argues that states need to pass the Healthy Workplace Bill because at-will employees can be fired for any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of anti-bullying laws will destroy employment at-will.

To quote another point I made just last year:

Employers who turn a blind eye to bullying … are doing their businesses and their employees a disservice. But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit…. Indeterminate bullying … should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack “incentive to act preventively and responsively,” as Professor Yamada argues. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.

Lawyers, larps*, and lousy heavy metal: a social media lesson

I spend a lot of time writing and speaking about social media and the workplace, a lot of which discussing what I call the Big 3: Facebook, Twitter, and LinkedIn. Those 3, however, are not the only social media sites that impact the workplace. An example, you ask? YouTube.

Last Friday, Above the Law ran a story about a local attorney’s heavy metal video (which Video Ga Ga recently named the worst video of the year). Please watch—sorry, it will be permanently burned into your retinas. Then, let’s talk.

Being a lawyer is a stressful job. Trust me, I get that. We all need outlets outside of work to relieve that stress. Before I had kids, my outlet was golf. Now, it’s my kids. When your hobby involves dressing up one your company’s secretaries in a bustier, you might want to have second thoughts. It doesn’t take much to turn today’s extracurricular laugh into tomorrow’s harassment complaint.

Social networks offer tremendous benefits as added channels of communication for your employees. “Friending” subordinate employees on social media sites, however, also carries risk. Because of that risk, I advocate that companies train their employees about the dangers of unfiltered online communications and consider implementing policies and guidelines limiting who can connect on Facebook, Twitter, and their kin.

Common sense should instruct employees about right and wrong, but if employees used common sense I’d be out of a job. Apparently, I need to build a module into my workplace social media training program about using subordinate employees as scantily clad extras in bad music videos. Who knew?

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*Larp: a type of game where a group of people wear costumes representing a character they create to participate in an agreed fantasy world. Uses foam sticks as swords, foam balls as magic and other props to create the games world.

WIRTW #204 (the “Dirty Harry” edition)

Jeff Haden, writing at Inc.com, suggests that you can make an employee’s day with two words.

My suggestion: “You’re fired.”

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

Discrimination

• Expanding mental diagnoses: the legal rub – from Walter Olson’s Overlawyered
• 10 things an employment lawyer never wants to hear – from Robin Shea’s Labor & Employment Insider
• Things Employment Lawyers Don’t Want to Hear – from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC Cries Fowl, Sues Turkey Giant Butterball for Disability Discrimination – from The Personnel Files
• Can My Employer Make Me Speak English, Even On Breaks? – from Donna Ballman’s Screw You Guys, I’m Going Home
• Changes to RFOA Defense in ADEA Claims On Horizon – from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

• Using Social Media Posts as Evidence in an Investigation – from Lindsay Walker at the i-Sight Investigation Software Blog
• Proceed with Caution: Using Sites and Search Engines to Screen Applicants – from Kara Mignanelli at Social Axcess
• Employee monitoring services on the rise: keystrokes, mouse movements, and screenshots – from The Verge
• Facebook Is NOT The Largest Online Social Network, Email Still Rules! Infographic – from Social Media Today
• Mark Zuckerberg’s Private Photos Exposed Thanks To Facebook Flaw – from Kashmir Hill’s The Not-So Private Parts
• Accommodating Cyber Shopping – from HRE Online
• Judge Orders Divorce Couple to Turn Over Facebook Password to Lawyers – from Ethan Wall’s Richman Greer Blog
• Asking Who Owns Social Media? You’re Missing the Point – from Forbes
• Fitness Instructor Fired for Big Mac Tweet – from Molly DiBianca’s Delaware Employment Law Blog
• Electronic Documents and Redaction - A Cautionary Tale – from Phil Miles’s Lawffice Space

HR & Employee Relations

• For Clear HR Blunders, Own Up Immediately – from Russell Cawyer’s Texas Employment Law Update
• Be Cautious Of How Far Back You Are Looking Into An Applicant's Civil Or Criminal History – from Hunton Employment & Labor Law Perspectives™
• 10 HR Action Items for December from HR Magazine – from SHRM Blog
• Hiring Veterans... – from Fistful of Talent

Wage & Hour

• Employees who share porn and take FMLA lose retaliation claims – from Eric Meyer’s The Employer Handbook Blog
• Should Working Moms’ Salary Packages Include A Maid And Nanny? – from Workplace Diva
• First Circuit Rules Banquet Sales Managers Exercised Discretion and Independent Judgment, Qualify for Administrative Exemption – from Wage and Hour Law Update

New rules for removing cases to federal court will impact employers

If you are an employer, or an attorney representing employers (and if you’re reading this blog I’d bet dollars to donuts you fall into one of these categories), the Federal Courts Jurisdiction and Venue Clarification Act of 2011 [pdf] will significantly impact you. Congress passed this bill last week, and PrawfsBlog notes that President Obama expects to sign it into law.

Without getting overly technical (for those who are not familiar with how the removal of cases from state court to federal court works), with some limited exceptions, a defendant has the right to take a case originally filed in state court into federal court if the plaintiff could have filed the case in federal court in the first place. There are two types of cases a plaintiff is jurisdictionally permitted file in federal court: those based on the diversity of the parties (where no plaintiff is a citizen of the same state as any defendant, and the amount in controversy exceeds $75,000), and those based on a federal question (where a claim arises under the Constitution, laws, or treaties of the United States).

The JVCA will make some significant changes in how we remove cases to federal court:

For all removed cases:

• In cases with multiple defendants, it will now be a statutory requirement that all defendants consent to the removal (codifying a long-standing judicial requirement).
• Each defendant will have its own 30-day period after receipt by or service on that defendant of the initial pleading or summons (clearing up a conflict among the circuits, some of which had denied a later-served defendant the benefit of a full 30-day period to file a notice of removal).
• If a later-served defendant is the first to file a notice of removal, earlier-served defendants may consent to the removal even though they had not previously initiated or consented to the removal (also clearing up a circuit conflict).

For removed cases based on a federal question:

• In cases that combine a federal question with non-removable state law claims (workers’ comp claims, for example), the JVCA will require the federal district court to sever the non-removable state law claims and remand them back to state court. This provision presents a risk of bifurcated lawsuits (and duplicative litigation?) in certain instances.

For removed cases based on diversity of citizenship:

• The JVCA adds a bad faith exception to the prohibition against the removal of cases after one year after the commencement of the action. A court can permit this late removal if it finds that the plaintiff acted in bad faith to prevent a timely removal (such as by deliberating hiding the real amount in controversy).
• The JVCA cures the conflict among the circuits in the calculation of the amount in controversy. It permits a defendant to state in the notice of removal the amount in controversy when the complaint is silent, and permits late removal if one learns the amount in controversy via discovery responses. This provision is significant in states like Ohio, which permit boilerplate $25,000 prayers for relief in common pleas court complaints. This provision removes that risk that a defendant who waited to remove a case following discovery on the amount in controversy risked remand based on a late-filed removal. 

It is no secret that employers and their lawyers usually prefer to be in federal court, and removal is often the way we get there. Because the JVCA will affect how we get certain cases into federal court, it is a significant development that warrants our attention. It will go into effect 30 days after President Obama signs it into law.

[Hat tip: @overlawyered]

Pop quiz: is this sexual harassment?

Readers, it's pop quiz time. Do the following allegations support an allegation of a hostile work environment?

• The Plaintiff’s manager stated that he had the best view in the house while walking behind plaintiff and another female employee.
• During a dinner in 2009 with refractive account managers, the manager made a comment about placing his wife in different sexual positions to conceive a boy or girl.
• The manager was present, and laughed, when one of his subordinates told a group of other employees that he did his best interviews with girls in bathing suits.
• During a 2008 National Sales meeting, the Regional Director hugged a female employee receiving an award on stage and mimicked an erection or had an erection. The manager witnessed the incident and just laughed.
• The Regional Director told plaintiff that she had nice legs and he had been watching her in her boots.
• The Regional Director asked plaintiff whether she knew that people referred to another female employee as “tits on a stick.”

According to the court in Kepreos v. Alcon Laboratories (N.D. Ohio 9/21/11), the answer is no:

The Court concludes that these isolated incidents, considered together, are just not severe or pervasive enough such that a reasonable jury could conclude that defendants created a hostile work environment. Accepting all of plaintiff’s evidence, no factfinder could determine that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe and pervasive so as to alter plaintiff’s conditions of employment.

Surprised? Because hostile environment claims are largely subjective, they are tricky to predict. One person’s (or judge’s, or jury’s) hostile environment is another’s isolated incident or workplace trifle. In addition, other facts in a case might sway the judge or jury to a different conclusion. For example, Alcon fired Kepreos because she had embezzled money via her corporate credit card. Do you think her dishonesty motivated the conclusion that her work environment wasn’t sexually hostile?
You might be thinking, if these claims are so unpredictable, how do you defend against them? The answer is prevention. Have a strong anti-harassment policy. Train all of your employees—from the CEO on down to the lowest paid hourly worker—on what the policy means and how it works. Give the policy teeth by consistently enforcing it, both by investigating all complaints and by taking appropriate remedial measures when needed. Create an environment where employees know they can complain without fear of retaliation and with confidence that their complaints will be taken seriously. By following these few steps, you will limit your opportunities to find your company on the receiving end of a tricky harassment lawsuit.