Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.

WIRTW #230 (the “2012 tour” edition)

I’m taking my act on the road. I have a slew of speaking engagements lined up between now and the end of the year. Let me know if you’re planning on attending any of these so that we can connect.

• Employees Online: Social Media at Work — Business Management Daily Webinar, July 11, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — Ashtabula Chamber of Commerce, July 26, 2012
• Employee Leave Rights and Employer Obligations — Ohio Chamber of Commerce HR Academy, September 12, 2012
• Employment Law in the Information Age: Best Practices for Employers — 7th Annual National Employment Practices Liability ExecuSummit, October 1, 2012
• Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace — GSMI HR Compliance Conference, October 16, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — COSE Small Business Conference, October 25, 2012

You can now keep track of all of my past and upcoming gigs at the brand new “Speaking Engagements” tab on the toolbar at the top.

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

Discrimination

• REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See… — from The HR Capitalist, Kris Dunn
• Internal Probe Participation Triggers Title VII Protection, Court Holds — from Joe’s HR and Benefits Blog
• A Few Thoughts on “Ageism” in the Workplace — from New Jersey Employment Law Blog
• The EEOC Contends Lactation Is Covered by Title VII — from Hunton Employment & Labor Law Perspectives™
• HELP WANTED: Born-again Christians need only apply — from Eric Meyer’s The Employer Handbook Blog
• Fathers Take Employers to Court for Discrimination — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• Employers Can Use Apps to Track Employees—But Is It a Good Idea? — from Technology for HR
• Can I Protect My Trade Secrets Via Social Media Policy? — from Trade Secrets & Non-Compete Blog
• Juror Misconduct & Bias - Social Media Investigation — from From the Sidebar
• 20 Awesome Facts About Twitter – 2012 Edition — from Social Media for Law Firms

HR & Employee Relations

• Are You Ready For Take Your Dog To Work Day? — from Workplace Diva
• Chaucer, the Prioress, her Lip, and your Employee Handbook — from A Maryland Employment Lawyer Speaks
• Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you’re sorry — from Robin Shea’s Employment and Labor Insider
• Summertime is Here: Don’t Be A Victim of Background Check Shrinkage — from Nick Fishman’s employeescreenIQ Blog
• Performance Evaluations: Let’s Talk About It — from Molly DiBianca’s Delaware Employment Law Blog
• Pull Up Your SOX: The New Whistleblowing Claim Grows Up — from Dan Schwartz’s Connecticut Employment Law Blog
• The top 10 harassment excuses … and how to see through them — from Business Management Daily

Wage & Hour

• The DOL at Your Door – What Do You Do Now? — from Mike Haberman’s Omega HR Solutions
• “The new workplace revolution: wage and hour suits” — from Walter Olson’s Overlawyered
• Function Over Form: The Supreme Court’s Realistic View of the FLSA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Do Hours Worked On A Second Job Count Toward Overtime? — from Wage & Hour Insights
• Wage Theft On The Rise — from Overtime Lawyer Blog
• Tenth Circuit dismisses claim by employee who was fired while on FMLA leave — from EmployerLINC
• Family and Medical Leave Act Webinar and Employee Guide — from Laconic Law Blog

Labor Relations

• Does Your Compensation Policy Violate NLRA? — from Stephanie Thomas at Compensation Cafe
• U.S. Unions: Uncivil On Civil Rights — from Forbes
• State Of The Unions: Labor And The Middle Class — from NPR’s All Things Considered

6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.

Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.

Reaching the 93%: NLRB launches webpage describing protected concerted activity

When asked the type of law I practice, I always respond with “management-side labor and employment law.” In reality, while I have many successful engagements under my belt in the world of traditional labor law, I am much more of an employment attorney than a labor attorney. And, if you ask 100 management-side labor and employment lawyers whether they identify more with labor law or employment law, at least 95 will tell you employment law. It’s not our fault. It’s just that as union membership has dwindled, so have the opportunities to practice traditional labor law.

Currently, only 7 percent of private sector employees belong to a labor union. Doing the math, that leaves 93 percent of the private sector workforce as non-unionized. Yet, the National Labor Relations Board’s ability to impact the workplace is not limited by unions’ 7 percent reach.

Yesterday, the NLRB launched a webpage dedicated to protected concerted activity, which highlights 12 recent cases litigated by the NLRB involving protected concerted activity. According to the NLRB:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away (emphasis added).

Trust me, it’s not a coincidence that the phrase “even if they aren’t in a union” prominently appears on this webpage above the fold. It’s a calculated public relations strategy.

According to the NLRB, “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” If the agency is being honest, I bet it would want to add a zero after that 5. The NLRB wants to be the go-to agency for employees fired for talking about work. It is in the process of reinventing itself so that it remains relevant, even as labor unions become increasingly irrelevant. Businesses must prepare themselves for increased knowledge by their employees on these issues, along with the increased enforcement efforts by the NLRB.

BREAKING: SCOTUS rules pharmaceutical reps are exempt outside salespeople

Today brings a bonus second post, because the Supreme Court just released its long-awaited ruling in Christopher v. SmithKline Beecham Corp. [pdf] The Supreme Court, by a 5-4 margin, held that pharmaceutical sales representatives are exempt, outside salespeople to whom employers need not pay overtime.

For all of the background on this case you could want, click through the following from my archives:

• Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)
• 2nd Circuit issues groundbreaking ruling on sales reps and overtime payments
• Do you know? The FLSA’s exemptions for salespeople

In summary, the Court concluded the following:

     1. To be considered a salesperson, one need to actually consummate a transaction. It is sufficient that the promotional work performed by the employee can lead to a sale.

This rationale rebukes the argument of the Department of Labor, which the Court called “quite unpersuasive” and lacking the hallmarks of thorough consideration.”

     2. Non-binding commitments from physicians to prescribe certain drugs qualify as sales under the FLSA’s outside sales exemption.

This rationale applies a common-sense approach to a statute that is often confusing and too rigidly applied.

To me, the following is the million dollar quote from the Court:

Our holding also comports with the apparent purpose of the FLSA’s exemption for outside salesmen. The exemp­tion is premised on the belief that exempt employees “typically earned salaries well above the minimum wage” and enjoyed other benefits that “set them apart from the nonexempt workers entitled to overtime pay.” … It was also thought that exempt employees per­formed a kind of work that “was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time­ and-a-half overtime premium.” … Petitioners—each of whom earned an average of more than $70,000 per year and spent between 10 and 20 hours outside normal busi­ness hours each week performing work related to his as­ signed portfolio of drugs in his assigned sales territory—are hardly the kind of employees that the FLSA was intended to protect. And it would be challenging, to say the least, for pharmaceutical companies to compensate detailers for overtime going forward without significantly changing the nature of that position.

I have long argued that the FLSA is an anachronistic maze of rules and regulations that does not well fit within the realities of the 21st century workplace. It seems that at least 5 members of the Supreme Court are inclined to agree with me. This excerpt provides hope for businesses that in the face of an overly-active Department of Labor and an overly confusing statute, courts can provide relief by adopting common sense interpretations.

For more on this important SCOTUS ruling, you can read the early reactions of some of my blogging friends (I’m certain more of the employment law blogging illuminati will weigh in today and tomorrow):

• Dan Schwartz’s Connecticut Employment Law Blog
• Phil Miles’s Lawffice Space

Plagiarism (a story with a happy ending)

I made a startling discovery on Friday. In last week’s WIRTW, I gave a shout out to the Meritas Social Media Guide for Lawyers v. 2.0. (In the name of full disclosure, my law firm, Kohrman Jackson & Krantz, is the Cleveland member firm of Meritas, an international alliance of full-service law firms, and its Social Media Guide features my blog.) One of the guide’s authors, Ethan Wall, took to Twitter to thank Daily Legal Law for mentioning the Social Media Guide. The only problem is that Daily Legal Law had plagiarized my column from Friday, reprinting it word for word.

I am all for other websites and blogs being so enamored with my content that they want to run it on their sites. Please, have the kindness to email me first to ask permission (I rarely say no), and then provide proper attribution. Don’t copy and paste my copyrighted content, and exacerbate your evilness by listing someone else as the author.

This story has a happy ending. Five minutes of easy research led me to DailyLegalLaw.com’s web host, HostGator, to whom I sent a takedown letter under the Digital Millennium Copyright Act. Yesterday, I received the following email from HostGator:

HostGator took down the entire website. If you visit DailyLegalLaw.com, this message is all you will find:

If you have employees posting content for your business online, remind them that plagiarism is illegal, that copyrights have meaning, that violating others intellectual property rights has consequences for the company (such as infringement lawsuits, civil fines, and criminal penalties), and that plagiarism is a terminable offense. Build these ideas into your social media, online communication, or similar policy, and re-enforce the concept in the training of your employees on responsible and legal online communications. Also, if you are regularly publishing content, it is wise to monitor the Web to check for stolen content, so that you can act swiftly to protect your IP.

To the proprietors of DailyLegalLaw.com: If you are going to steal copyrighted material, at least have enough common sense not to steal it from the one group certain enough to know how to protect their IP rights—attorneys. DailyLegalLaw.com, you are free to copy this post (and only this post) and paste it, in its entirety, on any of your other websites.