Bald is beautiful … unless you’re a Hooters waitress after brain surgery

Sandra Lupo took three weeks off from her job as a Hooters waitress for brain surgery. During her leave, her manager assured her that she would be able to return to work with a “chemo cap” or jewelry to distract customers from her buzz cut and large scar. Upon her return, however, Hooters changed course and told Ms. Lupo that she would have to wear a wig. When she could not comply because the wig irritated her scar, Hooters cut her hours until she was forced to quit. According to the St. Louis Post-Dispatch, she is now suing Hooters for disability discrimination.

Let’s first take care of the low hanging fruit. The insensitivity of Hooters’s reaction to this situation is easy to spot. Just because Hooters acted insensitively, however, does not mean that it acted illegally. Indeed, whether the wig requirement discriminated against Ms. Lupo is a tricky question.

The ADA protects three classes of individuals:

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

Actual Disability

Post-surgery, Ms. Lupo is going to have a difficult time claiming an actual disability. Even if her benign brain tumor was an ADA disability pre-surgery, after its removal she no longer had a current “physical or mental impairment that substantially limits one or more major life activities of such individual.” Therefore, as the 6th Circuit recently recognized in Blosser v. AK Steel Corp., a tumor that has been removed is not an actual disability. 

“Regarded as” Disability

Because of the temporary nature of her baldness, Ms. Lupo is also going to have a difficult time claiming that Hooters “regarded her” as disabled. 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. Thus, even if Hooters perceived Ms. Lupo as impaired because of her post-surgery appearance, that appearance would dissipate in six months with the regrowth of her hair.

“Record of Disability”

Ms. Lupo’s best claim is going to be that Hooters discriminated against her because of a “record of” an impairment. “Record of” disability claims are intended to ensure that employees are not discriminated against because of a history of disability. According to one court, “The ‘record of’ definition was tailor-made for plaintiffs who … claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

Yet, Ms. Lupo’s claim under this provision of the ADA is not clean. As the Blosser court noted, when a brain tumor is temporary and resolved by surgery, and the employee is able to return to work without restriction, a “record of” disability claim fails. Ms. Lupo will have a hard time establishing this claim because of the short duration of her underlying medical condition, coupled with her return to work free of any residual medical issues. Also, if Ms. Lupo does not have a protected record of a disability, Hooters has no obligation to provide any reasonable accommodation.

While Hooters will take a beating in the press over its treatment of Ms. Lupo, it is not a slam-dunk that such mistreatment violates the ADA.

[Hat tip: Eve Tahmincioglu]

photo credit: greenfaerietree via photopin cc

28 days later? Passage of time justifies recertification of intermittent FMLA leave

The FMLA permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court's ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

A “wet one” renders him gay? 5th Circuit to reconsider same-sex harassment case

In EEOC v. Boh Brothers Constr. Co., ironworker Kerry Woods (male) asserted that his supervisor, Chuck Wolfe, subjected him to all of the following:

• Called Woods names such as “faggot” and “princess.”
• Approached Woods from behind to simulate sexual intercourse.
• Exposed his genitals to Woods numerous times.
• Accused Woods of being girlish because he used “Wet Ones” instead of toilet paper to clean himself after using the bathroom.

Neither Woods nor Wolfe is homosexual. According to the Court, the workplace was full of this type of misogynistic and homophobic epithets, and the recipients, including Woods, responded in kind.

After Woods’s termination, he filed a discrimination charge with the EEOC, claiming, among other things, same-sex harassment. In the subsequent lawsuit filed the EEOC, the jury returned a verdict in Woods’s favor, awarding him $200,000 in compensatory damages (statutorily reduced to $50,000) and $250,000 in punitive damages.

The 5th Circuit, however, reversed:

Title VII protects employees against workplace discrimination, not against all forms of mistreatment. The EEOC alleges that Woods was unlawfully harassed because he was not stereotypically masculine. Because the only evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of … sex.”

In other words, Woods could not establish unlawful same-sex harassment because Wolfe was not homosexual, was not hostile to men in the workplace, and worked in a single-sex workplace. The 5th Circuit left for another day the question of whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.

It appears that day is upon us. Last month, the 5th Circuit agreed to rehear this case en banc.

The issue will resolve tension between two Supreme Court opinions:

• Price Waterhouse v. Hopkins, the seminal case on the illegality of sex-based stereotypes under Title VII.
• Oncale v. Sundowner Offshore Services, which permits same-sex harassment claims, but only if the harasser: (i) is homosexual, (ii) is motivated by a general hostility to the presence of the same sex in the workplace, or (iii) comparatively treated members of one sex differently than members of the other in a mixed-sex workplace.

If the 5th Circuit reverses course and permits the EEOC to pursue Woods’s claim for general same-sex harassment, it will signal a giant step towards doing that which Congress has refused—protecting sexual orientation from discrimination as a class.

[Hat tip: Workplace Prof Blog]

WIRTW #268 (the “… in a box” edition)

One of the stops my wife and I made when we honeymooned in Ireland was the Irish Jewish Museum in Dublin. Because Ireland is not necessarily known for its rich Jewish history, I joked before our trip that all we’d find at the museum was a small Plexiglas box, and that I would become the exhibit, locked inside until the next unsuspecting Jew stopped by to visit. 

Little did I know how prescient I was. The Today Show is reporting that the Jewish Museum Berlin has opened a new exhibit that is being called “Jew in the Box”:

To help educate postwar generations, an exhibit at the Jewish Museum in Berlin features a Jewish man or woman seated inside a glass box for two hours a day through August to answer visitors’ questions about Jews and Jewish life. The base of the box asks: “Are there still Jews in Germany?” “A lot of our visitors don’t know any Jews and have questions they want to ask,” museum official Tina Luedecke said. “With this exhibition we offer an opportunity for those people to know more about Jews and Jewish life.”

Yes, our country has a problem with discrimination, a lot of which is tied to some deep historical baggage. In other words, we are no different than the rest of the world.

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

Discrimination

• Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law — from Law and the Multiverse
• Calling a Co-Worker “Stupid” Not Enough to Prove “Disability”, Court Says — from Dan Schwartz’s Connecticut Employment Law Blog
• Fifth Circuit Agrees to Hear Appeal Regarding Same Sex Discrimination — from San Antonio Employment Law Blog
• Bell's Palsy Sufferer Fired Because Employer Believed That She Had A Stroke — from Employment Discrimination Report
• Straight Talk on Harassment from EEOC Regional Attorney, Robert Canino — from Texas Employment Law Blog
• Does Pre-Employment Testing Increase an Employer’s Exposure to Potential Lawsuits? — from The Emplawyerologist
• Minding Discrimination — from HR Examiner
• A Simple, Legal Way to Help Stop Employment Discrimination — from The Atlantic

Social Media & Workplace Technology

• Whom Do Social Media Followers Belong to—You, or Your Business? — from Knowledge@Wharton
• FireMe! app outs Twitter users who talk smack about their jobs — from Eric Meyer’s Employer Handbook Blog
• How To Stop Employers Digging Your Digital Dirt — from The Undercover Recruiter
• Social Media Rant by Employer Results in Retaliation Claim Added to Pending Litigation — from Michigan Employment Law Advisor
• BYOD plz — from HR idiot

HR & Employee Relations

• Hostile Environment: Porn in the Workplace – More Often Than We Know — from HR Gazette
• Being an Abusive Boss can get you Fined by OSHA — from Mike Haberman’s Omega HR Solutions
• Is It Unethical to Not Hire Smokers? — from Freakonomics
• Kim Jong-un in the workplace — from Michigan Employment Law Connection
• Should I Give References After Separation? — from Texas Employer Handbook
• Sometimes a “confidential” label doesn't hold up — from Work Matters
• Does your lawyer have to disclose your non-compete? — from Smooth Transitions

Wage & Hour

• The Dangers of Using Two Different Time Clocks — from Overtime Advisor
• How the Police Are Getting into the FLSA — from Compensation Café
• Pennsylvania Federal Court Decertifies FLSA Off-the-Clock Collective Action Against Citizens Bank — from Wage & Hour Counsel
• Obamacare for Employers in 87 Minutes — from Phil Miles’s Lawffice Space

Labor Relations

• Has The NLRB “Jumped The Shark”? — from Employment Essentials
• Court Overturns NLRB; Protects Company's Confidential Financial Information — from The Employment Beat
• Is There a Face-Off Under Way Over NLRB Decisions? — from Human Resource Executive Online

Photo credit: RustyTheDog (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons

The results are in: social media password survey

Last month, in response to the introduction of social media password legislation in the Ohio Senate, I posed a survey to gauge whether this is a problem that needs to be fixed, or an illusion created by the media.

Thanks to the hundreds who responded, I am happy to share my (very unscientific) findings, some of which are expected and some of which are surprising.

First, the not surprising. Employers are not engaging in this practice:

Has your company ever asked a job applicant or employee to provide the login or password to a social media or other online account?

• No: 90%
• Yes, an employee: 5%
• Yes, an applicant: 3%
• Yes, both: 1%

Have you ever been asked by an employer to provide the login or password to a social media or other online account?

• No: 95%
• Yes: 5%

Has your company ever denied employment, or fired an employee, because an individual refused to disclose the login or password of a social media or other online site?

• No: 98%
• Yes: 2%

It is fair to conclude that this supposed practice is not much more than an answer in search of a problem.

Nevertheless, despite the low incidence of these practices occurring, more than one-third of you still think we need this legislative answer to prohibit employers from requiring the disclosure of passwords and logins.

Do you believe that we need legislation to prohibit employers from asking or requiring individuals to disclose login or password information of social media and other websites?

• No: 64%
• Yes: 36%

How do I explain this apparent incongruence? Perhaps it’s the strong feelings that we hold about personal privacy, despite the very un-private nature of social media.

I believe that when one posts something online, that person forsakes any privacy he or she otherwise might have enjoyed in that communication. The majority of you, however, disagree:

Do you believe that employers have a legitimate interest in viewing social media accounts of job applicants before hiring?

• No: 71%
• Yes: 29%

Do you believe that employers have a legitimate interest in viewing social media accounts of employees during the term of their employment?

• No: 62%
• Yes: 38%

Do you believe that employees should have an expectation of privacy in what they post in their personal social media accounts?

• No: 45%
• Yes: 55%

As these survey results poignantly illustrate, there exists a tangible tension between the open nature of communications on social networks and personal privacy. It is going to be fascinating to watch these issues evolve over the coming years as the wall that separates the public and private continues to erode on social networks.

Can you hear me now? Unilateral deafness is not an ADA disability

I’ve long argued that 2009’s ADA Amendments Act changed the game for how employers defend disability discrimination cases. Because the ADAAA defines “disability” broadly, with the express goal of making it easy for employees to establish the existence of a protected disability, it is now exceedingly difficult for employers to win cases on summary judgment by arguing that an employee is not “disabled.” Here is the prediction and guidance I provided on this issue nearly two years ago:

Employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Because every rule is defined by its exception, I bring you Mengel v. Reading Eagle Co. (E.D. Pa. 3/29/13) [pdf].

Christine Mengel worked as a copy editor and page designer for Reading Eagle. In 2007, she became deaf in one ear following successful surgery to remove a brain tumor. 18 months later, Reading Eagle terminated Mengel’s employment as part of reduction in force. She claimed that she was included in the RIF because of her disability—deafness in one ear.

The district court disagreed, concluding that Mengel could not proceed on her ADA claim because she was not disabled.

However, Ms. Mengel only provided evidence of hearing loss in one ear rather than bilateral deafness…. Ms. Mengel failed to present evidence that her hearing loss in one ear substantially limited her hearing. She testified that her deafness in her left ear was not a distraction, and she did not mention any specific instances where her hearing loss caused a problem other than that she “didn’t hear some things.”

It is refreshing to see that courts are still examining the merits of a claim of disability, instead of glossing over it and assuming that the ADA protects all medical conditions. This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.

The key takeaway for employers, though, is to know that this subset is very small, and act accordingly when presented with an employee suffering from a diagnosed medical condition.

Deploy the Girl-Scout-cookie offensive to ward off labor unions

NewsOK reports that some employers have started banning their employees from promoting their kids’ fundraisers at work. At least one story has gone viral about a mom fired for hawking her daughter’s Girl Scout cookies to coworkers:

Tracy Lewis … was called into her boss’s office while working as a retail service manager for Bon Appetit, which provides various food services to the American University campus. Lewis claims her boss told her she was being fired for selling the cookies for her 12-year-old daughter’s Girl Scout troop out of her food cart, even though Lewis says she has done so for the past three years with no reprimand. 

This reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace. As crazy as it sounds, it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficient broad no-solicitation policy, and the enforcement of it in a non-discriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face, or operate to treat union-related communications differently than similar non-union solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness brackets. If that employer disciplines an employee for engaging in union-related solicitations, has it enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule, or are merely isolated incidents.

• For example, in United Parcel Service v. NLRB, the 6th Circuit concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.
• However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

I am immune the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has Celiac Disease, so I avoid bringing into my home glutened treated that he can’t enjoy. For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.

photo credit: nettsu via photopin cc