Sorry shouldn’t be the hardest word to say

More than two years ago, I wrote the following, in a post entitled The art of the apology:

Sometimes, all someone wants to resolve a problem is an apology. It’s easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo…. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Still need convincing? Watch the following video, and then let me know if you still think there is no value in swallowing your pride and simply saying, “I’m sorry.”

Do you know what to do when violence invades your workplace?

Tragically, mass shootings seem to be all the rage in America. The latest occurred last Friday morning outside New York City’s Empire State Building. The shooter was a disgruntled ex-employee targeting his former coworkers.

Do you have a plan in your workplace for a shooting or other emergency? If not, OSHA offers a comprehensive guide for putting together an emergency action plan. According to OSHA, “the best way” to protect your business and your employees “is to prepare to respond to an emergency before it happens.” Part of that preparation is the drafting of, implementation of, and training your employees about an emergency action plan.

The other part, though, is creating a culture in your workplace to deter violence, or spot potential violence, before it can happen. How can you accomplish this culture?

• Treat employees with respect—while they work for you, during a termination, and even after they are no longer your employees.
• Flag at-risk employees for assistance.
• Offer employee assistance programs for those who need them.
• Involve security personnel and local law enforcement at the first hint that an employee might turn violent.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against the kinds of tragedies that we’ve seen lately, these few steps can go a long way to putting you in the best place to deter and respond.

WIRTW #239 (the “has it been a year already” edition)

I have been blessed that the ABA Journal has included me on its list of the top 100 legal blogs (its “Blawg 100”) for the past two year (2011; 2010). As in the past, it is soliciting input on which blawgs to include on its 2012 list. From the ABA Journal:

We’re working on our annual list of the 100 best legal blogs, and we’d like your advice on which blawgs you think we should include.

Use the form to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

There are a few rules to keep in mind if you are inclined to click through and nominate any blogs:

• You can’t nominate your own blawg of any blawg on which you’ve contributed content.
• Wives and husbands cannot nominate their spouses’ blawgs (sorry, honey).
• Employees of law firms cannot nominate blawgs written by their co-workers.
• PR professionals cannot nominate their clients’ blawgs.
• Blawggers cannot enter into any kind of gentlemen’s agreement to nominate each other.

Submissions are being accepted until September 7.

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

Discrimination

• EEOC Background Check Policy is Fair Game — from Nick Fishman’s employeescreenIQ Blog
• 5 Ways to Avoid Caregiver Discrimination Claims — from i-Sight Investigation Software Blog
• When sexual harassment isn’t obvious — from HR Cafe
• Turning the Tables — from Workplace Prof Blog
• When an Employer’s Decisionmaker is Unavailable, What Then? — from Dan Schwartz’s Connecticut Employment Law Blog
• Not So Magical Kingdom: Alleged Discrimination at Disney — from The Proactive Employer Blog
• Got an appearance code? Make sure you allow exceptions for religion — from Robin Shea’s Employment and Labor Insider
• 11th Circuit: Employer's "Wellness" Program Did Not Violate the ADA — from The Personnel Files
• Working from home may be ADA right — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• Bad Decisions Make for Great Stories — from Jessica Miller-Merrell’s Blogging4Jobs
• $4.5 Million Reasons for Employers and Individuals to Balance Social Media Use & Risks — from Jason Shinn’s Michigan Employment Law Advisor
• Protecting Social Media Information When an Employee Leaves — from SchwabeBlog: Employment Update
• Naked Twister, Orgies, and Facebook — from Phil Miles’s Lawffice Space
• A New Source of Business: TMI — from Michael Fox’s Jottings By An Employer’s Lawyer
• Public Company Use of Social Media — from Augmented Legality
• Most Employers Unlikely To Have a Mobile Device Usage Policy — from EmployerBrief
• Federal Courts Join State Counterparts in Issuing Jury Instructions on Social Media — from Court News Ohio
• 10 Incredibly Simple Things You Should Be Doing To Protect Your Privacy — from Kashmir Hill at Forbes

HR & Employee Relations

• When Should Employers Make Exceptions to Their HR Policies? — from Troutman Sanders HR Law Matters
• Questions to draw out the truth during interviews — from Work Matters
• Gordon Ramsay, A Hotel, and a Hen House — from Molly DiBianca’s Delaware Employment Law Blog
• Top Termination Troubles — from Mark Toth’s Manpower Employment Blawg
• At-Will Employment Is A Big Deal — from California Employment Law
• Class of 2016 – The Same But Different — from Fistful of Talent

Wage & Hour

• A VERY EXPENSIVE Lesson in NOT Following the Rules — from Mike Haberman’s Omega HR Solutions
• When “Casual Conversations” Become FMLA Notice — from Smart HR Manager
• FMLA & ADA: Never the twain shall meet? (Part I) — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• “First, Do No Harm” – A Call For NLRB and EEOC Guidance — from Lorene Schaefer’s Win-Win HR
• Is Your Employer’s Investigation Gag Order Illegal? Why Investigations Might Not Be Confidential Anymore — from Donna Ballman’s Screw You Guys, I’m Going Home
• Boilerplate Language In NLRB Settlement Agreement Leads To Default Judgment — from Labor Relations Update
• Employer's Email System May Become Tool for Union Organizing — from Employment Law Watch

Counseling as an ADA-protected medical examination

The Americans with Disabilities Act prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” For this reason, an employer can only compel a current employee to undergo a medical examination in limited circumstances, confined by job-relatedness and business necessity.

The scope of what qualifies as a “medical examination” lies at the heart of Kroll v. White Lake Ambulance Authority (6th Cir. 8/22/12) [pdf]. When Emily Kroll, an EMT, showed on-the-job distress over an affair with a married co-worker, which included several outbursts at work, her employer tried to do something about it—compelling her to obtain psychological counseling, on her own terms and with any counselor she wished. Kroll refused, never returned to work, and sued for disability discrimination.

In concluding that counseling qualifies as medical examination under the ADA, the Sixth Circuit principally relied on the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees. That Guidance defines a “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The Court focused on the employer’s intent in requiring the counseling:

[T]he fact that an employer’s intentions are disability neutral does not save from falling within [the ADA]’s purview a test routinely used and administered by psychologists to uncover mental illness….

[W]e conclude that Kroll has presented sufficient evidence such that a reasonable jury could conclude that the “psychological counseling” Kroll was instructed to attend did constitute a “medical examination” under the ADA. We reach this conclusion … because the “psychological counseling” in question was likely to probe and explore whether Kroll suffered from a mental-health disability, regardless of whether this was WLAA’s intention.

The dissenting opinion, however, believes that intent is irrelevant, instead focusing on the issue of who chose the nature and type of the counseling:

By any definition, compelled counseling does not compel a medical examination. As the EEOC guidelines recognize, some “psychological tests” amount to medical examinations, and others do not…. No evidence shows that White Lake Ambulance insisted that Kroll’s psychological counseling involve one type of test or another. No evidence, indeed, shows that the ambulance service insisted she submit to any test while obtaining counseling….

The breadth of services encompassed by a psychological-counseling requirement resolves this claim. For it means that Kroll, not the company, controlled her destiny—controlled in other words whether she sought counseling that included a medical examination or did not. No doubt, she might meet this requirement by seeing a psychologist or psychiatrist who used a medical examination. But, if so, that was her choice, not the company’s. If a trying boss insists that an employee arrive at work by eight o’clock the next morning, it is not the boss’s fault if the employee opts to meet the requirement by staying overnight in the office. So it is here. Kroll had the right to meet this counseling requirement on her own terms, some of which could lead to a medical examination and others of which would not.

While I believe the dissent has the better of the argument, the fact remains that, for now, counseling is a medical examination covered by the ADA. Employers cannot compel employees to undergo counseling unless it is job-related and consistent with business necessity.

Thus, if counseling qualifies as a covered medical exam, then employers, like WLAA, will have to rely on the statute’s defense of job-relatedness and business necessity if an employee needs counseling. What is the best practice for employers going forward? Create of record of job-relatedness and business necessity. If an employee is acting erratically, document the behavior. Take photographs. Obtain statements from co-workers. Explain, in writing, how the employee’s behavior is impacting your business. Otherwise, you will have a difficult time demonstrating that a specific employee’s needs meet the statute’s requirements for a permissible medical examination.

What qualifies as “opposition” under Title VII?

Last week, I discussed the limits of Title VII’s opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one’s opposition to an act of discrimination.

Trujillo v. Henniges Automotive Sealing Systems NA, Inc. (6th Cir. 8/21/12) [pdf] involves two different allegations of protected activity:

1. After the company’s vice president referred to Mexican plant employees as “those fucking wetbacks,” Trujillo lightheartedly confronted him, resulting in an embarrassed apology.

2. After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company’s Vice President of Human Resources.

The 6th Circuit concluded that the only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation…. Trujillo could have engaged in protected activity if he had complained about Rollins’s comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct….

In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not in “opposition” to the alleged racial character of Rollins’s comments…. We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation…. The fact that it was, as the district court characterized it, an “informal conversation” does not change the nature and purpose of the conversation, which was a “discrete, identifiable, and purposive” opposition to racially-oriented language….

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII’s anti-retaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo’s complaints, and would have concluded that he had merely engaged in non-protected venting:

If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, plaintiff himself said: “I kind of was just venting. I was not intending for her to take action.” … Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguable engaged in protected opposition, involve counsel in the decision making before you draw yourself into a potential lawsuit.

The more you know… Determining when a company knows that an employee engaged in protected activity

“The check is in the mail” is one of the world’s oldest (and some would argue lamest) excuses. In Hicks v. SSP America (6th Cir. 8/3/12), the employer tried a variation in an attempt to avoid an employee’s retaliation claim. The employer argued that it was impossible for it have known that the plaintiff had filed an EEOC charge before it fired her because it has lost its mailbox key and therefore it could not have received its copy of the charge. Without debating the merits of the employer’s argument, the court of appeals still concluded that a factual issue existed on the issue of whether the employer knew of the protected activity, and reversed the trial court’s grant of summary judgment. The court relied, in part, on testimony from Hicks’s direct supervisor that he “‘remember[ed] seeing  it’ (apparently meaning he had seen either the notice-of-charge envelope from the Commission or the charge itself).”

This case teaches two important points:

1. Retaliation claims are dangerous. In Hicks, the appellate court affirmed the dismissal of the underlying discrimination claim. Nevertheless, the employer still faces the risk of a trial on the retaliation claim.

2. When crafting a defense, it has to pass the B.S. test. Unsupported defenses that border on the ludicrous (I lost the mailbox key) better have some meat on their bones. Receipts from a locksmith? An affidavit from the mailman that mail was piling up inside the box? Other corroborating witnesses? The less support you can present, the less likely it will be that a judge or a jury will believe your cockamamie story. And, the less likely they are to believe you, the more zeros you can add to the verdict.

Courts inch closer to recognizing sexual orientation as a protected class

The Ohio Bell Telephone Company fired Plaintiff Jason Koren after he missed work for his father’s funeral. Koren suspected that Ohio Bell really fired him because he’s homosexual and took his husband’s last name. He sued for gender discrimination. Did the court: a) grant Ohio Bell’s motion for summary judgment because Title VII does not offer protections for sexual orientation; or b) deny the motion because Title VII does protect against the application of unlawful sex-based stereotypes? Give yourself a prize if you answered “b.”

Here’s what the court had to say in Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12) [pdf]:

“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, … as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim…. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII.” …

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

Koren has alleged just such a failure to conform. And he says that [manager] Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination.

Nine out of the last 10 Congresses have tried to pass a version of the Employment Non-Discrimination Act, which among other things, would add “sexual orientation and gender identity” to the list of classes protected under Title VII. It has failed each time. Courts and the EEOC, however, continue to give the LGBT community that which the legislature has rejected.

As for me, I’ll simply repeat the opinion I gave after the EEOC issued its groundbreaking pronouncement on this issue earlier this year:

The time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.