When defending employment cases, chasing attorneys’ fees is a snipe hunt

My summer reading list includes Joel Stein’s Man Made: A Stupid Quest for Masculinity. The book recounts the self-proclaimed effete Stein’s journey to become more masculine in the wake of the birth of his son. In one chapter, Stein spends a weekend with a boy scout troop to learn how to camp. The troop’s hazing includes sending Stein on a snipe hunt. For the uninitiated, a snipe hunt is a practical joke played on inexperienced campers, who are sent to hunt an imaginary bird or animal (the snipe).

Believe it or not, snipe hunts have something to do with defending discrimination cases. Often, I hear this outrage from clients: “I can’t believe we’re being sued for this. I want to counter-sue to collect our attorneys’ fees!” Yes, there are statutes and rules in place that permit a defendant, in certain and extreme circumstances, to collect their attorneys’ fees from the plaintiff. But, there are few cases that will meet this high threshold for recovery. In reality, the likelihood of a judge ordering that a plaintiff-employee pay the defendant-employer’s attorneys’ fees under one of these fee-shifting mechanisms is on par with winning the lottery.

If you want to take any solace from this loser-doesn’t-pay system, consider these words, published yesterday by the 6th Circuit Court of Appeals, in Gibson v. Solideal USA, Inc. [pdf]:

As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.

Litigation is time consuming and expensive. Some cases (such as the one discussed yesterday by Dan Schwartz, at his Connecticut Employment Law Blog) can go on for a decade. We all have principles. We don’t like to pay money to an undeserving plaintiff when we know that we are right. And, when we prove that we are right, we think the plaintiff should pay us for our grief and aggravation. The system, however, is not set up to reward even the most deserving of employers in this way. The sooner employers realize that chasing reimbursement of their attorneys’ fees is a litigation snipe hunt, the sooner they can focus their efforts on the task at hand, concluding the case as quickly and cost-effectively as possible.

The season of the witch? The ADA and seasonal affective disorder

One thing we Clevelanders are really good at is complaining about the weather. For much of last week we approached 100 degrees, and we complained it was too hot. Yet, if it was a temperate 70, we’d complain that it’s too cool for July. And don’t even get me started about winter—too cold, too much snow, when is it going to get warm. Well, it’s been plenty warm, and the complaints keep on flowing.

Did you know that there exists a genuine psychiatric condition based on people’s weather-related moods? It’s called seasonal affective disorder, a mood disorder in which people who have normal mental health throughout most of the year experience depressive symptoms as the seasons change.

Like most psychiatric conditions, seasonal affective disorder has made its way into the workplace. In Ekstrand v. School District of Somerset (7th Cir. 6/26/12), the court upheld a jury verdict on a teacher’s claim under the ADA that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light.

If an employee asks for an office with a view, do not necessarily write him or her off as a complaining, high-maintenance pain-in-the-you-know-what. If, like Ranae Ekstrand, an employee presents a physician’s note documenting a condition, take it seriously by seriously considering whether it presents that much of an imposition to find the employee some natural light during the work day. Some consideration and a small reasonable accommodation might save you a half-million dollar judgment.

The EEOC and racial harassment: calling a spade a s---e

The EEOC has published a website detailing 42 racial harassment cases it has litigated over the past three years. The purpose of the website, I think, is to bring awareness to the agency’s efforts to combat this insidious form of discrimination. Sexual harassment cases often get the headlines, but racial harassment is just as damaging, if not more so, to its victims. By raising awareness of the fact that racial harassment is just as illegal as its more well-known cousin, the EEOC can increase the number of charges filed, helping to bring an end to this awful antebellum remnant.

The EEOC’s micro-site discusses racist workplace practices such as nooses, racially offensive comments such as “coon,” “gorilla,” and “porch monkey,” and jokes, cartoons and images that denigrate African-Americans.

What I find curious, though, is that while the agency rightfully has no problem recounting any of these allegations, it apparently has a huge problem republishing the word “nigger.” While several of the reported cases allege the use of that word, the word itself does not appear anywhere in the EEOC’s microsite. Instead, the agency uses shorthand such as “n----r” or “N-word.” Of course, we all know what these abbreviations mean. When reading, no one says “n-hyphen-hyphen-hyphen-hyphen-r” in their heads; you repeat the word, unabbreviated, in all of its ugliness.

Employment law can be dirty, and no cases are dirtier than harassment cases. Sexual harassment cases can involve words such as “bitch” and “cunt.” Sexual orientation harassment cases can involve words such as “fag.” And, racial harassment cases can involve words like “nigger.” Repeating the words in the context of the litigation neither facilitates nor perpetrates their hatred. In fact, the converse is true. Exposing the words for what they are is the most effective means to eliminate them from our workplaces. No problem was ever solved by sweeping it under the rug, and the EEOC’s politically-correct blinders are not helping rid America’s workplaces of this hateful word.

Of new dogs and new employees: communicating value is key

Last Thursday, my family and I drove to Battle Creek, Michigan, to pick up our new puppy. I cannot give the breeder (Jon Peck, Midnight Run Vizslas) higher marks. He spent two hours with us explaining the ins and outs of what we could expect with our new dog. He provided pointers on the peculiarities of the breed, and what he had observed with our particular pup over the eight weeks since she had been born. He even cleaned her ears and bathed her before we took her home. I don't know what your experiences have been when acquiring a new dog, but, based on mine and my wife's, this was above and beyond. Most importantly, it made us feel valued—that Jon truly and deeply cares not only about his dogs, but also about the homes to which they are going and the positive experiences of new owners. We are making a substantial investment of time in our new dog, and the time spent with us before we took her home shows that out commitment is valued.

This lesson translates well to the workplace. Each employee you hire is an investment. Yet, what is the first day of work like for many employees? A quiet room with a stack of forms to sign, maybe a cursory explanation of the employee handbook, and a tour of the facility? What does this half-assed stab at an orientation say about value? Does your new hire feel like a valued part of a team, or like a fungible and replaceable cog? An employee's first day of work—the orientation to your workplace and culture—should be the first step in communicating to that employee the investment you are making (i.e., that they are valued). It should not be viewed as an administrative burden to be overcome before the employee can start producing.

We would not love our dog any less if our experience was a simple exchange of a check for a pup. Yet, the time spent with us reinforces that we made a great choice for our family. The same should hold true for your relationship with your employees. Teach them their import from day one by making orientation a meaningful, and memorable, experience.

WIRTW #232 (the “welcome to the family” edition)

Everyone say hello to Loula Mae, our new family member (a vizsla, in case you’re curious).

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

Discrimination

• 5 reasonable accommodations an employer never dreamed it would have to make — from Robin Shea’s Employment and Labor Insider
• Class Now Trumps Race as the Great Divide in America — from The Atlantic
• EEOC initiates own investigation into looks-based discrimination — from Warren & Associates Blog
• Court Curbs Long Investigatory Arm of the EEOC - Twice — from Workplace Class Action Litigation
• One federal appellate court outlines parameters for “hostile work environment” claim — from Employment Law Matters
• Domino’s may be liable for sexual harassment of franchisee’s employees — from Judy Greenwald at Business Insurance

Social Media & Workplace Technology

• Workplace Email: The Devil Made Me Do It — from Molly DiBianca’s Delaware Employment Law Blog
• Are You Sharing Too Much Online? — from Social Media Today
• Employment Litigation in the Digital Age — from Technology for HR
• Will using Dropbox put your CEO in jail? — from gigaom

HR & Employee Relations

• Why my child will be your child’s boss — from Suzanne Lucas (the Evil HR Lady), writing at CBS Money Watch
• Why Nipple Tape Doesn’t Cure Workplace Conflict — from Blogging4Jobs
• Workplace Trends: The Talking Urinal Cake — from Workplace Diva
• Employee Handbooks – Are They Really Necessary? — from Employment Essentials

Wages, Hours, & Benefits

• Supreme Court of Pennsylvania grants review of $187-million class action judgment against Wal-Mart — from How Appealing
• Is Time Spent Filling Your Prescription at Walgreens Covered by FMLA? — from Jeff Nowak’s FMLA Insights
• DOL Issues Employee Guide to the Family and Medical Leave Act — from Hiring & Firing
• Why Did Roberts Reach the Commerce Clause on Obamacare? — from Phil Miles’s Lawffice Space

Labor Relations

• Directing Employees To Hand Out Leaflets A Violation, NLRB Rules — from Labor Relations Update
• Is Your At-Will Disclaimer a Ticking Time-Bomb? — from Labor Relations Institute
• How to Save Unions by Making Them Weaker — from Forbes
• NLRB Continues To Crack Down On Employer Social Media Policies and Continues to Leave Doubt On What Provisions Designed To Protect Trade Secrets and Confidential Information Will Withstand Its Scrutiny — from Trading Secrets

Associational retaliation is not the FMLA’s peanut butter cup

In Thompson v. North Am. Stainless, the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee’s close family member. The FMLA permits an employee to take up to 12 weeks of annual leave for the serious health condition of a close family member (spouse, child, or parent). Putting these two ideas together, one would assume that the FMLA protects against associational retaliation. The FMLA and Title VII, however, do not combine like chocolate and peanut butter to create an associational retaliation FMLA claim.

In Gilbert v. St. Rita’s Professional Services, LLC (N.D. Ohio 6/20/12), the Northern District of Ohio refused to recognize a claim for associational retaliation under the FMLA. Gilbert involved three plaintiffs, all of whom worked for St. Rita’s: Amy Gilbert, the mother of Shannon Kirby, who, in turn, was the mother-in-law of Mary Haught. After St. Rita’s fired all three, they sued. Kirby claimed that St. Rita’s retaliated her under the FMLA because her termination coincided with the end of Haught’s FMLA leave.

The court disagreed. It concluded that because the FMLA’s anti-retaliation language is more narrow than Title VII’s language, which the Supreme Court construed in Thompson, the FMLA does not provide for associational retaliation claims:

The Court rested its holding specifically on the broad “person … aggrieved” language of Title VII, language that is notably absent from the FMLA. In contrast to Title VII, the FMLA delineates certain specific classes of individuals who may bring an action — those who have been denied a right protected by the Act (“interference” plaintiffs) and those who opposed an employer’s unlawful action under the Act (“retaliation” plaintiffs)…. [I]t stands to reason that Congress’s intentional omission of Title VII's broad language in the FMLA specifically prohibits Plaintiffs’ interpretative extension of Thompson.

Not all statutes are created equal. Just because an employee has a remedy under one statute does not mean that the same remedy exists under another. When interpreting statutes, words matter, a lot. 

This case also gives me the opportunity to share this astonishingly bad 32-year-old Reese’s Peanut Butter Cup commercial. Enjoy the nostalgia, and ask yourself how an advertisement this hokey sold anything, let alone helped birth a candy institution.

6th Circuits provides much needed guidance on pleading standards

Today’s post is going to be a tad dry, for which I apologize. Its dryness, however, does not belittle the importance of the case I am going to discuss.

To file a lawsuit, the Federal Rules of Civil Procedure merely require a plaintiff to state in his or her complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal the Supreme Court defined what satisfies this requirement. A plaintiff must plead enough facts to raise a right to relief above mere speculation and from which a court can draw a reasonable inference that the defendant is liable for the misconduct alleged. In other words, one must be able to read the complaint and understand the specific misconduct that the plaintiff is alleging to be unlawful.

In discrimination cases, do these pleading standards require a plaintiff to specifically plead the elements of the discrimination claim under McDonnell Douglas, or is it sufficient for a plaintiff merely to allege facts that enable the court to infer discrimination?

In Keys v. Humana, Inc. (7/2/12) [pdf], the 6th Circuit reviewed the district court’s dismissal of a discrimination complaint because it had failed to allege facts that plausibly established a prima facie case under McDonnell Douglas. The 6th Circuit reversed, re-affirming that Twombly and Iqbal do not mandate the rote recitation of McDonnell Douglas’s prima facie elements:

The Amended Complaint contains allegations that are neither speculative nor conclusory; it alleges facts that easily state a plausible claim. The Amended Complaint alleges Humana had a pattern or practice of discrimination against African American managers and professional staff in hiring, compensation, promotion, discipline, and termination. It details several specific events in each of those employment-action categories where Keys alleges she was treated differently than her Caucasian management counterparts; it identifies the key supervisors and other relevant persons by race and either name or company title; and it alleges that Keys and other African Americans received specific adverse employment actions notwithstanding satisfactory employment performances.

If courts are not going to require plaintiffs to use McDonnell Douglas at the pleading stage, and instead focus on whether the complaint pleads a plausible claim of discrimination, is it time that we consider ending the charade that the McDonnell Douglas burden-shifting framework is a useful tool? Why make litigants jump through imaginary hoops at the summary judgment stage, when we can all analyze the ultimate issue (was the adverse action discriminatory) just fine on our own?