Hot off the presses, the Supreme Court just issued its decision in Vance v. Ball St. Univ.
Via SCOTUS Blog, the Court held that “an employer is a supervisor for vicarious liability under Title VII only if she has the power given by the employer to take tangible employment actions against the victim.”
The opinion was 5-4, split down partisan lines.
You can download a pdf of the opinion here. The case background is here and here.
I’ll have analysis of the opinion later today.
Hopefully, you know that the ADA protects employee medical information as confidential. According to the EEOC:
The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.
What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.” Regardless, these examples potentially implicate the ADA’s confidentiality provisions.
What can a company do to guard against this type of ADA violation? Businesses should build confidentiality protections into their social media policies. Just as companies should be reminding employees that employee medical information is confidential and should only be disseminated on a need-to-know basis, so should they carry over those protections to their social media policies.
Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. I can almost guarantee that a violation of the ADA’s confidentiality protections is the furthest from a manager’s or supervisor’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, some training—on this issue could save you a headache in a disability discrimination lawsuit down the road.
I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.
I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.
Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:
I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.
Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”
Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.
Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….
The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.
As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.
photo credit: danny.hammontree via photopin cc
News broke yesterday that the American Medical Association voted to re-classify obesity from a condition to a disease.
Conventional wisdom has been that normal, run-of-the-mill obesity, unlinked to an underlying medical condition such as diabetes, is not a disability protected from discrimination by the Americans with Disabilities Act.
This decision by the AMA, however, will likely flip that conventional wisdom on its head. The ADA, as amended in 2009, is so broad that it covers virtually any diagnosed medical condition as a “disability.” Now, employers will have to consider reasonable accommodations for anyone with a body mass index of 30 or over. Also, anyone who appears to have that BMI will have potential protections from terminations and other adverse actions related to that perceived “disease.”
While this expanded coverage of the ADA is problematic, this issue raises a deeper, more troubling problem. The goals of the ADA are commendable. Yet, as we expand the ADA to cover non-traditional medical conditions, a backlash is inevitable. Protecting the unworthy will erode the desire to protect the worthy. Every time an overweight worker sues for disability discrimination will cost those suffering from illnesses that deserve to be protected.
Congress was correct in amending the ADA to restore the original intent of the statute. Obesity protections, however, illustrate that perhaps those amendments went too far.
Until now, celebrity chef Paula Deen was best known for high cholesterol and high incidence of diabetes. After this week, however, she might now be better known as the worst deponent ever.
Ms. Deen was recently deposed in a race discrimination case brought by a former employee. Among her testimonial gems, according to Talking Points Memo (which includes a copy of the full deposition transcript):
As for me, I’m saving a copy of the transcript to use with my clients as the example of how not to perform at a deposition.
It’s hard to believe, but the summer blockbuster—the high budget, slickly marketed, big action, and bigger box-office-return movie that has everyone talking—was born 38 years ago tomorrow. On June 20, 1975, Jaws hit theaters. It earned $470 million total, which, I don’t have to tell you, is a lot of chum, especially in 1975 dollars. In hindsight, Jaws changed the film industry by changing how we go the the movies. There had been plenty of movies before Jaws that made lots of money, but after Jaws, movie studios began to plan their entire annual release schedule around the release of one big summer movie.
In honor of this week marking the anniversary of Jaws, I present the Summer Blockbuster edition of the Employment Law Blog Carnival.
Jaws (1975): $470,653,000 total worldwide box-officeIs there anything scarier than a the world’s biggest great white shark terrorizing a sleepy New England beach community? How about reviewing 403(b) plan documents? Yikes! According to Employee Benefits Unplugged, you might be able to put that fear away, as the IRS Paves the Way for “Boilerplate” 403(b) Plan Documents.
Star Wars (1977): $775,398,007
Despite the tense battle between Darth Vader and Obi-Wan Kenobi in the original trilogy’s original film, you could sense the mutual respect that rested at the heart of their complicated relationship. At The HR Bartender, Sharlyn Lauby (along with yours truly) shares how Employee Respect Is an Unfair Labor Practice.
Raiders of the Lost Ark (1981): $389,925,971
In the original Raiders…, Indiana Jones had to overcome some spectacular traps. None is more famous, though, than the giant boulder that chased him out of the cave in the film’s opening sequence. Of course, Indy escaped. The Emplawyerologist helps you avoid the 10 most common pitfalls of the I-9 form.
E.T. the Extra-Terrestrial (1982): $792,910,554
Is there anything more beautiful than E.T. healing Elliot’s finger? Ask Mike Haberman, who, over at Omega HR Solutions, offers us The Good, the Bad and the Ugly about Hiring only Beautiful People.
Ghostbusters (1984): $291,632,124
I ain’t afraid of those ghosts. Apparently, the 3rd Circuit ain’t afraid of those NLRB recess appointments, according to Third Circuit Agrees with Noel Canning; Is the 2nd Court to Invalidate NLRB Recess Appointments from Employment Essentials.
Back to the Future (1985): $383,874,862
Is there anything more depressing that traveling 30 years in the past only to find out that you mom has the hots for you? Ask Heather Bussing, who, over at The HR Examiner, writes about Depression and Work.
Top Gun (1986): $356,830,601
You will be the top gun of employers if you document your employees’ performance and disciplinary problems (says CPEhr’s Small Biz HR Blog), successfully enforce termination clauses in employment agreements (says First Reference Talks), and provide for your employees bad-mouthing your company online (says Jessica Miller-Merrell’s Workology).
Batman (1989): $411,348,924
“Where does he get those wonderful toys,” asks Jack Nicholson’s Joker. Some employers feel like the joke is on them when dealing lately with the EEOC. John Holmquist’s Michigan Employment Law Connection shares some insight into the Agency’s thought process in A conversation with the EEOC.
Indiana Jones and the Last Crusade (1989): $474,171,806
The third installment in the saga of Indiana Jones concerns the quest for the Holy Grail, the mystical chalice out of which Jesus supposedly drank at the Last Supper. Blogging4Jobs, in Creating a Company “Bible” Can Save Time and Attorney’s Fees, suggests that your company create its own grail of best practices and corporate knowledge to aid your attorney in representing you in litigation.
Jurassic Park (1993): $969,851,882
You want scary? How about being chased by an honest to goodness T-Rex? Or, courtesy of Robin Shea’s Employment & Labor Insider, Is your reason for termination honest, logical, and complete? If not, you may get a scary result in your discrimination case.
The Lion King (1994): $951,583,777
The circle of life starts with pregnancy. Eric Meyer’s The Employer Handbook shares the most cockamamie excuse evah for firing a pregnant employee.
Finding Nemo (2003): $921,743,261
Dory tried to talk to the whale. She should have listening to its warning. Fitzpatrick on Employment Law reports on a different type of warning, in Fourth Circuit Holds That Supervisor’s “Warning” Constitutes Adverse Action.
The Dark Knight (2008): $1,004,558,444
The Dark Knight has some spectacular violence, most of which is wrought by the film’s amazing antagonist, The Joker. How do you handle home-grown violence that permeates your workplace? Ask the author of this piece at Musings, discussing a Victim of Domestic Abuse Fired from Teaching Job.
Toy Story 3 (2010): $1,063,171,911
I live in a Toy Story world. Just ask my almost-five-year-old, Donovan, and his collection of a few-dozen Buzz Lightyears of various sizes and features. For this reason, no list of summer blockbusters compiled by me would be complete without including the most successful animated film of all time, Toy Story 3. The movie concerns a jail break from Sunnyside Daycare by Andy’s beloved toys. If they were real criminals, and the city of Seattle had its way, employers would be limited in learning of their conviction records, says Washington Workplace Law’s Seattle Bans Consideration of Criminal Background in Early Stages of Hiring Process.
Black Swan (2010): $329,398,046
Okay, so Black Swan neither premiered in the summer, nor is it properly classified as a blockbuster (although $300+ million in international box-office and a Best Actress Oscar for Natalie Portman is nothing to sneeze at). There is no movie, though, more appropriate to discuss the recent happenings with the legality and illegality of unpaid internships. See Black Swan Unpaid Interns Win FLSA Claim from Phil Miles’s Lawffice Space, and Top 6 Signs Your Unpaid Internship Should Be Paid from Donna Ballman’s Screw You Guys, I’m Going Home.
Robin Shea, the author of the fabulous Employment & Labor Insider, will host next month’s Employment Law Blog Carnival, on July 17. If you want to participate, email her a link to your employment-law-related blog post by July 12. If you want to host a future edition of the Carnival, email its curator, Eric Meyer.
Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #279.
An employee who posed in Playgirl magazine is suing his former employer for sexual harassment, reports ABC News.
18 years ago, Daniel Sawka posed as a nude lumberjack in Playgirl. Sawka alleges that when his co-workers discovered the pictures online, they began teasing him with chants of “Timber!” According to Sawka’s lawsuit [pdf], the harassment included jokes about “his genitals, and a comment about what homosexual men viewing the photos … would be doing while viewing the photos.” Sawka also claims that his co-workers downloaded or viewed the photos during work hours and on work computers.
The lessons here are two-fold:
Also, this story gives me great excuse to share this: