The devil went down to the EEOC… A story on religious accommodation

Halloween is almost upon us, which mean that it’s only appropriate to discuss one of the EEOC’s last actions before the government shutdown—the filing of a lawsuit against two Pennsylvania energy companies for failing to accommodate an employee’s religiously based fear of using the newly installed time and attendance biometric hand scanners. From the EEOC’s press release:

Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

The mining companies refused to consider alternate means of tracking Butcher’s time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers. The EEOC charges that Butcher was forced to retire because the companies refused to provide an accommodation to his religious beliefs.  

According to the EEOC lawyer litigating this case, “In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs. Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.”

Before you dismiss an employee’s request for a religious accommodation as silly or outrageous, stop, think, and decide whether the expense or difficultly in making the accommodating exceeds the cost and aggravation of defending a possible discrimination lawsuit. The answer to that equation, should, more often than not, guide your decision.

For more on this issue, I recommend pages 229 – 230 of my latest book, The Employer Bill of Rights, where I discuss a former co-worker of mine who believed that Lee Iacocca saved Chrysler by making a pact with the devil, and how the company for which we worked accommodated his beliefs (true story).

Can George Costanza sue for sexual harassment or retaliation?

In an episode of Seinfeld, George Costanza lost his job after the cleaning woman, with whom he had sex on his desk in his office after hours, ratted him out to management.

Could he have sued for sexual harassment? According to Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), the answer is no.

Caroline Stevens, worked as the personal assistant to defendant Dr. Donald Saelinger, the Chief Executive Officer of Patient First, which was later acquired by Saint Elizabeth Medical Center. After the hospital discovered a recently ended a consensual relationship between the two (which included after-hours sex in the office ), it offered both the option of resignation or termination. Stevens refused to resign, yada yada yada, and was fired.

The 6th Circuit affirmed the dismissal of both her sexual harassment claim (premised on some post-break-up love notes and other protestations of continued affection at the office) and her retaliation claim (premised on her termination after she had written a letter to Saelinger stating a desire to do her job in a non-threatening environment).

There is nothing wrong with employees dating. Nothing good, however, comes from a boss having relations with a subordinate employee, especially one who is a direct report. No matter your corporate position on employee romance, it’s probably best to prohibit managers and supervisors from dating (etc.) their direct reports. Untangling relationships is complicated enough. You do not need to complicate it more by engaging the possibility (and the resulting legal risk) of an employee reporting to an ex.

As for George’s possible legal claims, it’s no soup for you.

The case regarding intern harassment

By now, you’ve probably read about Wang v. Phoenix Satellite Television (S.D.N.Y. 10/3/13) [pdf], the New York federal court case dismissing, under New York City’s employment discrimination law, a sexual harassment claim brought by an unpaid intern. The decision, which held that an unpaid intern cannot bring a harassment claim because she is not an “employee”, has been panned as a crime against workers.

Let me assure you, this decision is 100 percent legally correct. Under Title VII, interns are not employees. Therefore, they have no legal right under the civil rights laws to assert harassment claims.

Critics of this decision argue that it leaves interns unprotected from harassment. Yet, there are three reasons why this decision doesn’t have nearly as big an impact as some would like you to believe.

1. Unpaid interns are a dying breed. The DOL has made a full-court press against the unpaid intern. Gone are days when a company can take on an unpaid intern as a de facto trainee. Entry-level employees, whether called interns, trainees, or something else, are employees that must be paid. The only interns that remain for a company to use as unpaid labor without risking an FLSA violation are those that are placed with a company for school credit. 

2. Bona fide unpaid interns—those working through an educational institution—are not without redress. They can complain to their sponsoring educational institution, which risks Title IX liability if it ignores the complaint. The school should take the complaint seriously, investigate, go to bat for the intern, or pull the intern out of that placement and find a substitute replacement internship, all without penalty to the student.

3. Harassed interns also have other remedies against the business—they can sue for intentional infliction of emotional distress, assault, or other common law torts. 

Harassment is a serious issue, which all employers should take seriously. The reality, however, is that bona fide interns are not employees. They never have been, and, absent a radical change in the law, they will not be in the future. To call for changes to five decades of law under Title VII for a small subset of individuals who have remedies elsewhere, however, misses the legal and practical realities of this issue.

WIRTW #292 (the “hot pockets” edition)

Are you looking for some fresh idea on how to spruce up your management style? Look no further than these four tips from corporate-guru Jim Gaffigan:

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

Discrimination  

• Why Age Discrimination Should Matter to You — from HR Examiner with John Sumser
• Hijab accommodation: Will Abercrombie's victory stand? — from Robin Shea’s Employment & Labor Insider
• ‘T*ts Or GTFO’ Now A Legitimate Requirement For Unpaid Interns — from Abovethelaw.com
• It’s Not Just A Speed Bump: The EEOC Loses Another Battle In Its War On The Mandatory Conciliation Process — from Workplace Class Action Litigation
• Employee—a grown man for God’s sake—claims he was fired for being a brony — from Eric Meyer’s The Employer Handbook Blog
• The Situation of Ageism — from The Situationist
• Woman is Fired for Being Old and Ugly – A Win for the EEOC — from Workplace Insights
• Future Friday: The Disability of the Future Workplace? — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Snap(chat), Kik & Whisper: What Social Networking Apps Your Employees Are Using Today — from Dan Schwartz’s Connecticut Employment Law Blog
• Boss Hacks Personal Email Account of Employee. Emotional Distress Follows. — from Molly DiBianca’s Delaware Employment Law Blog
• How Social Media Could Soon Change Performance Reviews — from Workplace Diva  
• Keeping it simple : 5 word law firm social media policy — from Real Lawyers Have Blogs
• BYODOMG! Your Kids Are Taking Over Your Work Phone — from Workplace Diva
• Employment Law IQ: Hiring Decisions Based on Social Media Postings — from Southwest Florida HR Law & Solutions

HR & Employee Relations

• Employer knew of Navy Yard shooter’s mental instability — from Walter Olson’s Overlawyered
• Indemnification Clauses: Think about it now or regret it later — from Ohio Real Estate Blog
• Making Terminations a Little Less Difficult — from Blogging4Jobs
• Firing of USC football coach not a model for employer handbook — from Employment Intelligence
• Generation X — Has Our Day Finally Come? — from TLNT
• Long Live the Reference Check — from Inc.
• My Employer Filed Bankruptcy. Does That Mean They Can’t Enforce My Noncompete? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• The Best Startup Perk? A 40-Hour Week — from Bloomberg Businessweek
• Supreme Court Declines to Review Nurse's Claim of Off-the-Clock Work In Contravention of Policy — from Wage and Hour Law Update
• The Other Area 51? Court Holds 51 Job Titles, Even In Same Area, Are Too Alien From Another For Class Treatment — from The Wage and Hour Litigation Blog
• When An Employee Is On FMLA Leave, How Much Contact Is Too Much? — from Laconic Law Blog

Labor Relations

• SCOTUS 2013-14 Labor Law Preview — from Phil Miles’s Lawffice Space
• BREAKING NEWS: Obama Says All Striking Union Members Should Be Fired — from LaborPains.org

Until next week… Hot pockets…

How to handle the malingering FMLA abuser

Let’s say you have an employee who claims to be suffering from a chronic back injury. He even has doctor’s notes certifying that his back pain impairs his “ability to lift, to carry heavy objects, to bend repeatedly, or actually bend at the waist.” So, you grant the employee intermittent leave under the FMLA, which the employee uses several times each month. But, you start to notice a pattern. The employee’s FMLA-protected days off always seem to bookend weekends and holidays. As a result, HR initiates an investigation, which includes surveillance of the employee. That surveillance uncovers that while the employee is home supposedly resting his painful back, he is actually going out for coffee, shopping, and working in his garage repeatedly bending down, lifting pieces of wood, and carrying them into his house. When confronted, the employee suggests that “‘maybe’ his doctor had given him a shot of Cortisone earlier in the day.” Unimpressed, the employer ultimately terminates the employee for “fraudulent or illegal conduct.”

In Tillman v. Ohio Bell Tel. Co. [pdf], the 6th Circuit affirmed the trial court’s dismissal of the employee’s FMLA retaliation and interference claims. The court concluded that Tillman could not pursue his retaliation claim because the company “held an honest belief that Tillman had abused his FMLA leave and violated the company Code of Business Conduct,” and could not pursue his interference claim because, whether or not the “honest belief rule” applies to interference claims, Tillman was not entitled to FMLA leave on days on which he was not actually suffering from a serious health condition.

This case is a great lesson for employers on how to build a case to support a termination decision. If you believe that an employee is abusing FMLA leave, build your case. Uncover enough facts to support your belief that that employee is committing fraud and otherwise not entitled to leave. Armed with that evidence, a court is unlikely to overturn your decision. While it may cost you a little extra up front in investigatory costs, you will save money on the backend both in litigation costs and future abuses by employees deterred from malingering.

It’s time to end sexual orientation & gender identity discrimination

There is currently legislation pending in both the Ohio House [H.B. 163] and Ohio Senate [S.B. 125] that would include “sexual orientation” and “gender identity” to the list of classes from which employees are protected from discrimination by their employers. Notably, the bills protect both actual and perceived sexuality and gender-related appearance:

• “Sexual orientation” = “actual or perceived heterosexuality, homosexuality, or bisexuality.”
• “Gender identity” = “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated gender at birth.”

If Ohio Revised Code chapter 4112 is amended to include these protections, then harassment of employees based on their actual or perceived sexual orientation and gender identity become illegal. In that case, the line-splitting in which courts have engaged under the rubric of “same-sex harassment” will largely become a relic.

Case in point? EEOC v. Boh Brothers Construction Co. (5th Cir. 9/30/13). The facts of this case are horrific. It’s worth a read to understand just how cruel employees can be to each other. Yet, the case split 10-6 on whether the facts supported claim of sexual harassment. One of the two dissents envisioned a world in which employers would have to distribute “etiquette memos” to purge the workplace of speech and gestures that might be viewed in any way as tokens of sex discrimination. I’ve reprinted the court’s very tongue-in-cheek example below.

The dissent is exaggerating to make its point that Title VII was never meant to be a general civility code, and only the worst type of sex-based behavior is meant to trigger the statute.

Exaggerations aside, the time has come for Congress (when the federal government is back in business), along with all 50 state legislatures, to step up to the plate and end this debate. Enact legislation including sexual orientation and gender identity as protected classes, and bring to and end the shameful protection of discrimination against this marginalized class of individuals.

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ETIQUETTE FOR IRONWORKERS

MEMO TO: Management FROM: Legal Department of Apex Co. DATE: September 2013

In keeping up with the newest developments in employment law, we have carefully reviewed and hired specialist outside counsel to give us a legal opinion concerning the implications of a recent Fifth Circuit en banc decision. EEOC v. Boh Bros. . . . Like us, the employer in that case engaged in heavy construction and often operated in all-male crews. Like us, it had an unblemished record, years without a Title VII case. But the court ruled that common sexual epithets and vulgar gestures, when used too frequently by a male, heterosexual supervisor, can support a verdict against the company on behalf of another male, heterosexual plaintiff. Instead of looking on these actions as horseplay or, at worst, bullying, the court approved a jury verdict for “gender-stereotyping harassment.” The EEOC intends to make this case an example for similar workplaces.

We need not advise you of the costs a company can incur in these cases. In addition to hundreds of thousands in outside legal fees, a judgment for damages may run into six figures. The EEOC requested, and got, a sweeping and intrusive injunction that will require significant expenditures in paperwork compliance costs and regular workplace sensitivity training for over one thousand employees.

To avert these consequences, we recommend that the company immediately issue the following rules for proper, non-gender-stereotyping workplace behavior. Employees should be informed that the rules apply across the board, to all-male, all-female, and mixed-sex offices and positions. The workplace must be cleansed of speech and actions that may be misperceived or twisted as reflecting gender stereotyping harassment.

NOTICE CONCERNING TITLE VII

To our Associates:

You are all aware of this company’s unwavering policy to prevent discrimination of any kind based on sex, race, religion or national origin. Because of a new court decision, we must now focus on eliminating same-sex “gender stereotyping” of any kind as well. This means that men may expose this company to liability for their speech and behavior in the presence of other men, and women in the presence of other women. Although these rules will apply throughout the company, you IRONWORKERS have to take special notice. The rules apply throughout the workday, during breaks and lunch hours, and whenever two or more workers are gathered together.

1. At the most general level, all employees must refrain from any communication—spoken, written, or gesticulated—that may create any suggestion of “sexual stereotyping” or “gender-based bullying.” Please consider the broad implications of this prohibition, some of which follow. All employee interactions must be fully gender inclusive (or at least gender ambiguous). Careless phrases and jokes will not be tolerated if they may be interpreted to carry a stereotyping overtone.

2. No more banter about bodily functions, sexual or otherwise, or human physical appearance. Those who do not enjoy references to sweat, toilet humor, tattoos, tight jeans, muscles, or large beards may feel singled out as not “man enough” for such speech.

3. Do not discuss the appearance of women or any intimate sexual encounters, and do not refer to or use words that refer to sex in any way. This includes CUSS WORDS.

4. Do not swivel your hips, make obscene gestures or mimic “twerking.”

5. Avoid discussing topics that may be viewed as “non-inclusive”: bodybuilding, Boy Scouts, hunting, fishing, and riflery. Football and other “macho” sports may be an unwelcome subject to those who consider them boorishly aggressive.

6. Do not engage in any competitive activity, like lifting heavy objects, on the worksite. This can create a sense of unmanly inferiority for non-participants.

7. Do not use gender-stereotyped nicknames or name-calling. Supervisors may not encourage you to work harder by saying “put your backs into it,” or “man up,” and terms like “ladies” or “sissies” will be grounds for immediate discipline.

8. Schoolyard humor, which is common at our jobsites to fill down-times and relieve boredom, raises sensitive issues. Some workers may be put off by jokes about personal grooming, scented deodorant, chest hair, or clothing as a form of gender hostility. Poking fun at a worker for drinking a diet soda, not being able to eat a raw jalapeno, using “Wet Ones” or “Purell” to clean himself, or calling someone a “wimp” or “wuss” or “geek” may get us sued and you in serious trouble.

9. Asinine locker room behavior is forbidden. Examples of this would be comments about anatomy, crude gestures, actions like towel-swatting, simulated sexual acts, and any behavior that would make someone ill at ease with his personal expression of his gender. Relieving yourself in the presence of others is forbidden; the company is reconfiguring all restrooms to prevent any worker from observing another worker’s bodily functions.

10. Avoid touching any coworker in any manner, except if asked to rescue the person from physical danger, and even then, avoid touching private areas.

PENALTIES: A first violation of these rules will result in a warning, a second violation in suspension without pay, and successive violations will result in termination. We will not call this a “three-strikes” policy, as that term might be interpreted to refer to the principally male sport of baseball. We need hardly explain that any worker terminated for same-sex gender stereotyping will have a hard time finding future employment.

The Company will conduct quarterly sensitivity sessions, where you can learn more about offensive gender stereotyping against fellow males and what you can do to prevent or correct it. As questions arise at any time, call our newly hired Sex Stereotype Counselor in the HR Department.

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751,942 (and a half) marks against the EEOC in background check litigation

It’s no secret that criminal background checks rank highly on the EEOC’s hit list. The EEOC has taken the position that a policy that per se eliminates someone with a criminal history from consideration for employment violates Title VII as having a disparate impact based on race. And, the EEOC is aggressively litigating so that courts will bless its non-binding enforcement guidance on this topic and make it law.

What happens, however, when the EEOC litigates this point despite proof that an employer does not have a policy of rejecting felony applicants? A court of appeals affirms a three-quarters of a million dollar attorneys’ fees judgment against the agency and in favor of the employer against whom it unreasonably litigated. That is exactly what the 6th Circuit did yesterday in EEOC v. Peoplemark, Inc. [pdf].

The district court did not abuse its discretion when it found that the Commission could not prove its case as pleaded…. As is required, the Commission pleaded a specific employment practice—a companywide policy of denying employment opportunities to felons. That policy did not exist, and the claim the Commission pleaded could not be proved….

We are not focused on the Commission’s theory of the case, but rather, whether the claim was frivolous, unreasonable, or groundless, or whether the Commission continued to litigate after it clearly became so. As the Commission admits in its brief, it “pled a blanket policy.” The only employment practice it pleaded—and as a direct result, the only claim it pleaded—could not be proved.

We are currently ensnarled in a ugly budget fight that has shuttered our federal government. Perhaps one solution to this crisis is for Congress to engage in some simple oversight over the agencies that enforce our various laws, including the EEOC. $751,942.48 in taxpayer money is a costly investment to chase a fools’ errand.