But he looked black… Court rebukes EEOC’s use of “race rating” in systemic lawsuit

According to the EEOC’s draft strategic enforcement plan for 2012 – 2016, the agency’s number one enforcement priority is ending systemic discrimination in recruiting and hiring. In EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) [pdf], the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. Yesterday, the court dismissed the lawsuit in its entirety, excluding the EEOC’s expert witness and concluding that without that expert, the agency could not prove its case.

To determine the race of a particular applicant considered by Kaplan, the EEOC’s expert witness used “race raters.” It subpoenaed the applicants’ DMV records, and used a panel of five people to determine if the photograph looked  “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” The EEOC’s expert required that four out of the five race raters reach consensus to consider that applicant’s race.

Kaplan challenged that the judgment of these “race raters” was nothing more than guesswork, resulting in inherently unreliable data. In agreeing with Kaplan and dismissing the lawsuit, the court cited at least four different reasons for excluding the EEOC’s expert. It was the last reason, though, that caught my eye:

Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.

In other words, the agency charged with ending racial stereotypes in the workplace based its entire case on stereotypical way in which different races “look.”

If there’s one thing I hate it’s intellectual dishonesty. Whether it’s the EEOC prosecuting a race discrimination case by using “race spotting,” or a Catholic hospital defending a wrongful death suit by arguing that a fetus is not a person because life begins a birth, not conception, intellectual dishonesty is nothing more than the sum of hypocrisy and laziness. I am grateful that we have federal judges in my home district who are willing to call the EEOC on the carpet for this tactic, and I am hopeful that the 6th Circuit will see things the same way when ruling on the inevitable appeal.

Employees, if you don’t want us to get your social media info in discovery, don’t post!

In EEOC v. The Original Honeybaked Ham Co.—a hostile environment sexual harassment brought by the EEOC on behalf of 20 female employees—the federal court compelled the plaintiffs to produce their social media profiles. Donna Ballman, writing at Screw You Guys, I’m Going Home, argues that the court botched this ruling because an order compelling the production of social media information in a sex harassment suit can only lead to an employer arguing that that the plaintiffs “asked for it.” Donna argues:

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, “Cu**” on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can’t be offended when someone else uses it toward them.

Donna’s argument, however, misses the mark. The court did not compel the production of the employees’ social media accounts to bolster a “they asked for it” defense. The court ordered the production because one of the employees “posted on her Facebook account statements that discuss her financial expectations in this lawsuit,” and wrote about “her post-termination employment and income opportunities and financial condition.” She also wrote about other potential causes for any emotional harm (a lost pet), and her positive outlook on life following her termination. Other of the plaintiffs joined in at least some of these posts.

There are two key issues in any case: liability and damages. The court primarily ordered the production of the social media information to permit the employer to build a defense as to the latter. An employee’s financial motivations and emotional well-being are relevant to showing that she has not been harmed to the extent she is claiming, if at all.

Moreover, the court did not compel the free and unfiltered production the employees’ social media accounts. It required an in camera inspection by the court, along with of a forensic special master and detailed questionnaires for each plaintiff to complete concerning their online activities. This case is not an example of a court irresponsibly ordering a prying into plaintiffs’ private lives under the guise of discovery. This court went above and beyond to prevent any unnecessary invasions of privacy while ensuring the employers’ right to gather relevant information.

The bottom line is that social media profiles are a potential treasure trove of information in litigation.  Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit. And, stop posting photos of yourself wearing a “cu**” t-shirt. If you post, rest assured it will likely be fair game to use against you in the lawsuit you chose to file. As the Honeybaked Ham court reminds us: “If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account?”

WIRTW #258 (the “imitation is the sincerest form of flattery” edition)

This week, the Connecticut General Assembly (hat tip: Dan Schwartz) introduced Proposed House Bill 5236, which would create an “Employer’s Bill of Rights.” Hey, that sounds kind of familiar. Didn’t someone wrote a whole book called The Employer Bill of Rights?

Representative Kupchick, I’m waiting for my licensing fee. I’m sure the check’s in the mail.

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

Discrimination

• Rethinking Discrimination — from Heather Bussing at HR Examiner
• Fact or Fiction: Your employee's nasty facial scar may be a disability — from Eric Meyer’s The Employer Handbook Blog
• Limits on reemployment rights under USERRA — from EmployerLINC
• Can you terminate an employee covered by USERRA? — from Warren & Associates Blog

Social Media & Workplace Technology

• You Can (Sort Of) Talk Smack About Your Boss Online Now — from Workplace Diva
• Facebook trashing your boss may be OK — from CareerDiva
• The Great Employer/Employee Social Media Passwords Debate — from Jessica Miller-Merrell’s Blogging4Jobs
• How “bring your own cloud” could kill BYOD — from Consumerization Blog

HR & Employee Relations

• Video of Ohio Man Lifting Weights Ends His Workers’ Comp Benefits — from EmployerBrief
• You’re Damned if You Don’t Have the Right Inclement Weather Policy — from damnedif
• Catfishing "Employers" — from Workplace Prof Blog
• Manti Te’o, Notre Dame and the Art of the Crappy HR Investigation — from The HR Capitalist, Kris Dunn
• The Batmobile Employee Handbook Provision — from Employment & the Law
• Four Words the Fair Credit Reporting Act has Class Action Plaintiffs and Their Lawyers Repeating: “Show Me The Money!” — from Employment Class Action Blog

Wage & Hour

• Sex, lawyers, and “independent contractor versus employee” – believe it or not! — from Robin Shea’s Employment and Labor Insider
• DOL Issues Guidance on FMLA for Adult Children — from Phil Miles’s Lawffice Space
• Clarification of FMLA Leave for Children with a Disability — from Jason Shinn’s Michigan Employment Law Advisor
• DOL’s Misclassification Initiative Continues — from Wage & Hour Insights
• “Right to Know” Back On The Table? — from Wage and Hour Laws Blog
• The FLSA's Emergency Exception — from Stephanie Thomas at Compensation Café
• Under Federal Law, Are You Required to Pay Your Employees for Their Breaks or Not? — from Overtime Advisor

Labor Relations

• Another Dizzying Ride on the NLRB Roller Coaster — from Molly DiBianca’s Delaware Employment Law Blog
• The NLRB Hits Just Keep Coming. This Time, Possible Front-Pay — from Trade Secret / Noncompete Blog
• The NLRB Hinders Confidentiality in Nonunion Companies — from Michael Haberman’s Omega HR Solutions
• Union Membership Plummets, According to Today’s Bureau of Labor Statistics Report — from LaborPains

Damn You Auto Correct! (train your employees to proofread)

Do you have employees under the age of 35? If so, the odds are that they communicate with each other with text messages on their mobile devices. If you’ve ever texted, you know the evils of autocorrect. For the uninitiated, autocorrect is a function of today’s smartphones that automatically changes an unrecognized word to its closest match.

Sometimes, these auto-corrects have hilarious results.

Of course, one employee’s hilarious is another’s offensive, which brings us to today’s HR lesson.

When you hold your annual harassment training (you hold annual harassment training, right?) you might want to consider mentioning the evils of autocorrect. You will never succeed in having the Gen-Y’ers and Gen-Z’ers exchange their iDevices for more face-to-face conversations. You may succeed, however, in educating on the importance of proofreading messages before they are sent, which, in turn, could save you the time and expense of an internal harassment investigation, or, worse, defending a lawsuit.

This post originally appeared on The Legal Workplace Blog.

How do you spell civil rights? ENDA

Yesterday, the EEOC announced that it has filed a lawsuit against a Charlotte security-services company on behalf of a group of male employees who claim that their same-sex captain and lieutenant sexually harassment them.

This news comes on the heels of President Obama’s Inaugural Address, which The New Yorker calls, “America’s most important gay rights speech.” It was not only what the President said, but also the context in which he said it—on Martin Luther King Day, as part of a larger discussion about the civil rights movement.

Here are the President’s remarks, courtesy of ABC News:

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall….

It is now our generation’s task to carry on what those pioneers began…. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.

What does this mean for you, as an employer? It means that President Obama’s second term will likely be the point in history when sexual orientation achieves equality. It means that sometime between now and 2016, the Employment Non-Discrimination Act (ENDA) will become the law of the land, amending Title VII to include sexual orientation and gender identity as protected employment classes on par with race, sex, religion, national origin, disability, and age. It’s about time.

The time is coming when LGBT discrimination will no longer be acceptable. As an employer, you can get ahead of this issue. According to the Human Right Campaign, 88 percent of the Fortune 500 has non-discrimination policies that include sexual orientation, and 57 percent include gender identity. ENDA or not, we should be at 100 percent. It’s appalling that 13 years into the twenty-first century, it is still legal in the United States of America to treat people differently solely because of their inclusion in a marginalized group. 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.

Requests for unpaid medical leaves should be stamped, “Handle With Care”

If I had to rank questions I get from clients in order of frequency, questions on medical leaves would be near, if not at the top of, the list. These questions usually take the form of, “Sally has been out of work on a medical leave for a few weeks (or months), and tells us she needs to be out for a few more. We need to get her work done. Can’t we just replace her and move on?” The easy answer, whether or not you are covered by, or the employee is eligible under, the FMLA, is a big fat “no.”

Regardless of the FMLA, the ADA will require that you consider, and likely grant, an unpaid leave of absence as a reasonable accommodation for a disability. How long is too long? Bimberg v. Elkton-Pigeon-Bay Port Laker Schools (6th Cir. 1/17/12) [pdf] provides some guidance.

Cynthia Bimberg took an unpaid leave of absence from her teaching position to care for her husband, diagnosed with metastasized melanoma. The employer granted her 12 weeks of leave under the FMLA, extended that leave by 6 months until the end of the school year, and again extended it to the one-year anniversary date of her leave. When she then failed to return to work, the school district terminated her employment.

In affirming the decision dismissing Bimberg’s ADA lawsuit, the 6th Circuit commented on the duration of her leave in relation to the legal merits of her discrimination claim:

The alleged factual dispute concerns Bimberg’s insistence that her year of unpaid leave ended on January 4, 2010, not on December 18, 2009. But Bimberg conceded in her deposition testimony that she would not have returned to work in January 2010 in any event, because she could not leave her terminally ill husband in Houston. Indeed, she did not return to Michigan permanently until a week after his death on February 11, 2010….

It is apparent that Cynthia Bimberg was motivated by the hope that Laker Schools would relent and, on humanitarian grounds, allow her to take what, from their point of view, constituted an indefinite leave. The school district’s failure to do so clearly did not constitute a violation of the ADA.

What should you take away from this case?

• An indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA.

• You must consider a finite unpaid leave as an accommodation. Even finite leaves, however, can reach a point that tips the leave from reasonable to unreasonable.

• If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue with the employee about a return date, and prepare to be flexible (to a point). What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. Then, when the employee asks for “one more extension” to his or her leave of absence, no one will fault you as an unreasonable ogre if you decline.

[Photo credit: jenny louise johnson via photopin cc]

Something different for MLK Day

Today is Martin Luther King Jr. Day, celebrating not only the life of Dr. King, but, more importantly, the lessons of inclusion and respect to be learned from his life and untimely death.

In years past, I’ve provided some words of wisdom for employers from this important day:

• 2012: What Dr. King fought for … and what he didn’t
• 2011: MLK Day calls for reflection about how far race relations have come, and how far we have left to go
• 2008: Some words to ponder on MLK Day

If you’ll indulge me, I thought I’d try something a little bit different to memorialize this day: humor—both in the SFW and NSWF variety—each with something important to say about race relations in our society.

 

Archie Bunker's historical meeting with Sammy Davis Jr. (SFW)

 

Chris Rock asking, "Can white people say nigger?" (NSWF)

And, if humor’s not your thing, I’ll be back to regularly scheduled programming tomorrow with a post answering the age-old disability discrimination question, “How long is too long for a medical leave of absence?”