There is no such thing as a “license to harass”

To establish an unlawful hostile work environment, an employee must prove, among other factors, that the workplace was subjectively offensive. Some employers misinterpret this requirement as meaning that an employee who participates in sexual banter, off-color jokes, or shares intimate details of her personal life is asking to be harassed.

Case in point? In EEOC v. Joe Ryan Enterprises (M.D. Ala. 3/28/13), the employer attempted to defend against a sexual harassment lawsuit by arguing that it had a “license” to harass the plaintiff, presumably because of her earlier participation in similarly offensive misconduct in the workplace. The district court was not having any of that argument, and granted the EEOC’s motion to prohibit the employer from raising that defense:

The Court has come across no authority to support Joe Ryan’s proposition that the defenses of “license” and “ratification” apply in a sexual harassment/constructive discharge context....

Still, even if the Court were to entertain this defense, it is clear that what Joe Ryan has argued is a far cry from the traditional defenses of “license” and “ratification.” Indeed, in its opposition brief, Joe Ryan claims that Ms. Brown’s “eager, enthusiastic and contributory participation to the acts and language she now complains of” evidences her purported “license” and “ratification” of the discriminatory conduct she endured while employed with Joe Ryan.

In Joe Ryan, the employee allegedly hung a sexually suggestive cartoon in a work trailer. Just because an employee engages in some workplace banter, however, does not mean that she acquiesces to all forms of sexual misconduct, such as being called a “whore” (one of the allegations in the case).

Employers need to build these concepts into their workplace anti-harassment training. Employees need to understand that some participation in sex-based workplace hijinks does not create a license to harass in perpetuity. No one can tell where someone draws his or her personal line of inappropriateness, and trying to make that decision for someone else can only result in trouble (i.e., a lawsuit) down the road.

This post originally appeared on The Legal Workplace Blog.

SCOTUS: Picking off individual plaintiffs moots wage and hour collective action

The pickoff is one of the most dramatic defensive plays in baseball. It can single-handedly kill a rally. The tying run on first? One deft move by the pitcher to first base, coupled with a lead that’s one step too cocky? Rally over.

We love baseball in part because it can be a metaphor for much that happens in our lives. Today, it’s a metaphor for wage and hour law.

The issue the Supreme Court faced in Genesis Healthcare Corp. v. Symczyk (4/16/13) [pdf] was whether a case becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims. Last December, I predicted an employer loss in this case (the link also provides all the case background you’ll need).

I’m happy to report that my prediction was very wrong. In a partisan 5-4 decision, the Court held as follows:

Because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction.

In other words, because there was nothing left for the plaintiff to litigate after the rejected offer of judgment, the plaintiff had no right to pursue the remaining collective claims.

Here’s the money quote from the Court:

In this case, respondent’s complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant’s attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff’s alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent’s suit than if her suit had never been filed at all.

There is perhaps no greater threat facing employers than the risk of a wage and hour collective action—both because of the difficulty in complying with the FLSA’s maze of anachronistic rules and regulations, and because of the expense incurred in defending such a claim. Genesis Healthcare confirms that employers have a powerful weapon at their disposal to cut these dangerous claims off at their knees—a Rule 68 offer of judgment.

Much like a baserunner failing to anticipate a deft pitcher’s move to first base, the Court confirmed that a valid offer of judgment can catch your opponent off-guard and end their hopes of a successful collective action.

For more analysis of this decision, please read the thoughts of some of my fellow bloggers:

• SCOTUS Blog — Opinion recap: A “pick off” strategy works
• Phil Miles’s Lawffice Space — SCOTUS Decides FLSA Pick-Off Case 
• Eric Meyer’s The Employer Handbook Blog —Employee caught in a pick, Supreme Court scratches her FLSA claims
• Workplace Prof Blog — Supreme Court Holds That Employer's Offer Moots FLSA Class Action Prior To Certification
• Michael Fox’s Jotting’s By An Employer’s Lawyer — Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?
• Daily Kos — Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it
• The Wage & Hour Litigation Blog — Genesis of A Clearer Distinction Between Class and Collective Actions? Supreme Court Decides Symczyk

photo credit: Chicago Man via photopin cc

Do you have a workplace emergency action plan?

Yesterday’s tragedy in Boston has left me speechless. I’m frankly not sure what to say, other than I’m sick of these horrible events; what to think, other than to offer prayers; or what to feel, other than sadness for those affected.

We will search for answers (How could this happen? Who could do such a thing? How can anyone be capable of such hatred or ignorance? How do we prevent it from happening yet again?) Yet, from this tragedy we can take away one certainty—that no one can predict when or where tragedy will strike, and it pays to be prepared for the worst. Boston seems to have been prepared, and at least by early accounts, the city’s early responders helped save many from suffering a worse fate.

Employers can learn an important lesson from these ashes and tears—the importance of being prepared. OSHA publishes a booklet entitled, How to Plan for Workplace Emergencies and Evacuations. Not all employers are required to follow it, but all employers should heed its words by taking steps to prepare for the worst.

As OSHA explains it:

Nobody expects an emergency or disaster—especially one that affects them, their employees, and their business personally. Yet the simple truth is that emergencies and disasters can strike anyone, anytime, and anywhere. You and your employees could be forced to evacuate your company when you least expect it.… The best way to protect yourself, your workers, and your business is to expect the unexpected and develop a well-thoughtout emergency action plan to guide you when immediate action is necessary.… Few people can think clearly and logically in a crisis, so it is important to do so in advance, when you have time to be thorough. Brainstorm the worst-case scenarios. Ask yourself what you would do if the worst happened.

You cannot control the idiocy of others, but you can control whether you know how to respond if it happens.

I’ll leave you with the words of stand-up comic and actor Patton Oswald, who, on his Facebook page, held out hope for humanity’s inherent goodness, and perhaps made the most poignant statement in the wake of yesterday’s horrors:

Boston. F*cking horrible.

I remember, when 9/11 went down, my reaction was, “Well, I’ve had it with humanity.”

But I was wrong. I don’t know what’s going to be revealed to be behind all of this mayhem. One human insect or a poisonous mass of broken sociopaths.

But here’s what I DO know. If it’s one person or a HUNDRED people, that number is not even a fraction of a fraction of a fraction of a percent of the population on this planet. You watch the videos of the carnage and there are people running TOWARDS the destruction to help out. (Thanks FAKE Gallery founder and owner Paul Kozlowski for pointing this out to me). This is a giant planet and we’re lucky to live on it but there are prices and penalties incurred for the daily miracle of existence. One of them is, every once in awhile, the wiring of a tiny sliver of the species gets snarled and they’re pointed towards darkness.

But the vast majority stands against that darkness and, like white blood cells attacking a virus, they dilute and weaken and eventually wash away the evil doers and, more importantly, the damage they wreak. This is beyond religion or creed or nation. We would not be here if humanity were inherently evil. We’d have eaten ourselves alive long ago.

So when you spot violence, or bigotry, or intolerance or fear or just garden-variety misogyny, hatred or ignorance, just look it in the eye and think, “The good outnumber you, and we always will.”

A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

WIRTW #269 (the “roshambo” edition)

On Wednesday’s edition of DriveThruHR, Dan Schwartz challenged me to a game of Rock-Paper-Scissors to determine, once and for all, who reigns supreme in the world of employment law blogging. Dan, you’re on (and you’re going down). Just let me know when.

http://roshambo.me/

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

Discrimination

• Fired and told “your a little too old for your job,” Old Rose LOSES her age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• A Refresher Course For Employers On Retaliation — from Employment Discrimination Report
• Should Smokers be a Protected Category? — from Mike Haberman’s Omega HR Solutions
• Is It Religious Harassment To Hand Out Chocolate — from Evil Skippy at Work
• Can I Be Fired for Being Gay? — from Blogging4Jobs
• Five snips on workplace harassment (plus a bonus) — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Should You Fire Employees Who Use (or Misuse, However Defined) Social Media? — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s your opinion of BYOD privacy? — from Consumerization Blog RSS
• Coping With the Rising Mobile Workforce and the BYOD Culture — from TLNT
• Internet and Email Use in the Workplace — from ERC Insights Blog
• The Duty To Preserve Social Media Information — from Social Media Employment Law Blog
• Employees who use social media are more efficient, survey says — from Ragan.com
• Law and Order: Human Resources Unit – LinkedIn Lockout — from HR Idiot

HR & Employee Relations

• Employee Theft Blacklist: What Could Possibly Go Wrong? — from Nolo’s Employment Law Blog
• Think Your Company’s Confidential Information is Safe? Think Again! — from HR Defense Blog
• Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering — from Minding the Workplace
• Cease and Desist Letters: Defamation May Not Be An Issue But Watch Out for Tortious Interference — from Trade Secret Litigator Blog

Wage & Hour

• The Employment Law You Are Probably Breaking — from Evil HR Lady, Suzanne Lucas
• High-Tech Employers Dodge Class Certification In Anti-Solicitation Antitrust Case — from Workplace Class Action Litigation
• What Happened, Dude?: Overtime Hours, Working Time, and Tracking Apps — from The Wage & Hour Litigation Blog

Labor Relations

• Quorum, Heck a Fully Appointed NLRB? — from Michael Fox’s Jottings By An Employer’s Lawyer
• Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB — from Labor Relations Counsel
• White House to Nominate Three NLRB Members — from Workplace Prof Blog

New bill seeks to extend comp time to private employers

One question employers ask me all the time is whether they can provide employees comp time (extra time off) in lieu of overtime. For private-sector employers, my answer is always the same—no.

I am hoping, however, that I soon may have to change my answer. Earlier this week, the Working Families Flexibility Act of 2013 [H.R. 1406] was introduced in Congress.

This bill would do all of the following:

• Permit employers to provide compensatory time off, earned at the rate of 1.5 hours per hour of overtime worked, in lieu of overtime pay.
• Provide that any comp time program must be supported by a written agreement.
• Allow employers to exclude from any comp time program employees who have worked less than 1,000 hours in the prior 12 months.
• Cap the annual comp time allotment at 160 hours per employee.
• Require that employers pay out any unused comp time at termination.
• Permits employees to use comp time upon reasonable notice, unless it unduly disrupts the employer’s operations.

The FLSA already provides similar rights to public sector employers. It’s about time that the law is changed to provide the same rights to those in the private sector. I’ll keep everyone updated if there is any movement on this bill.

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