You can’t always get what you want … but even when you do it’s an “adverse employment action”

Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?

Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”

[A]n employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….

We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

You might be a defendant if … you ask applicants for a family medical history

According to this press release, a New York nursing and rehabilitation center will pay $370,000 to settle a genetic discrimination lawsuit filed by the EEOC. The EEOC claimed that the employer asked job applicants for a family medical history as part of its post-offer, pre-employment medical exams.

The ADA permits employers to conduct medical exams after an employer makes a conditional job offer, but before the employee starts work, as long the employer does so for all entering employees in the same job category. Whether or not an employer can gather a family medical history as part of this post-offer/pre-employment exam, the Genetic Information Nondiscrimination Act, which prevents employers from requesting genetic information or making employment decisions based on genetic information, renders family-medical-history collection illegal.

Medical-related inquiries by employers are complicated and rife with risk. To ensure full compliance with the law, do not include questions about family histories in these examinations. Otherwise, in the words of EEOC New York District Director Kevin Berry, “There are real consequences to asking applicants or employee for their family medical history. The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Cursing as religious harassment—context matters

With The year was 1985. I was 12 years and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the dinner table on my first night home from camp, seeking my seasoning on my meal, I asked my mom to “pass the f***king salt.” Needless to say, they were very surprised, and very un-amused.

I thought of this story after reading Griffin v. City of Portland (D. Ore. 10/25/13) (h/t: The Blue Ink), a case in which an employee of deeply religious convictions claimed religious harassment based, in part, on her co-workers’ repeated taking of the Lord’s name in vain.

The court concluded that a line exists between the use of general profanity in the workplace and the use of profanity directed at the plaintiff because of her religion:

The record suggests that Parks and Recreation employees at the Mt. Tabor yard frequently used profanity out on the yard and in the office. Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With language, context matters. For example, it was okay to use salty language to ask for the salt at summer camp; at the dinner table with my parents, not so much. Similarly, Ms. Griffin’s employer will skate on her harassment claim if she cannot prove that her co-workers cursed “because of” her religion.

Nevertheless, employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees.

WIRTW #303 (the “toilet humor” edition)

True story. I just learned of a company (not a client) that maintains two sets of bathrooms—one for its “office” employees and one for its “warehouse” employees—and never the twain shall meet. The company forbids the warehouse workers from using the office restrooms. I’m not sure if the converse is also true, but given the air of snootiness that would lead to such a policy in the first place, I doubt management would grace the warehouse restroom with its presence.

Do I need to tell you that you are sending the wrong message to your workers if you have class-segregated bathroom? Or, am I off-base?

Readers, what do you think?

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

Discrimination

• 2 weird sexual harassment cases, with 8 lessons for employers — from Robin Shea’s Employment and Labor Insider
• Workplace Sexual Harassment Includes Sexual Harassment In The Corridor — from Employment Discrimination Report
• You’re Damned if You Don’t Settle Meritorious Discrimination Cases — from damnedif
• Judge slashes jury award for black plaintiff called the “N”-word—by her black boss — from Eric Meyer’s The Employer Handbook Blog
• Temporary Illnesses Or Conditions May Be Covered By The ADA/ADAAA — from Atlanta Employment Lawyer Blog
• “Hang Up Your Superman Cape” and Age Discrimination: 8th Circuit Reverses Grant of Summary Judgment — from Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• Employment Lawyer Predicts the Future. What Happens Next Will Restore Your Faith in Humanity. — from Dan Schwartz’s Connecticut Employment Law Blog
• Social media misbehavior may (or may not) be enough for termination — from Technology for HR
• Why you should never hire anyone based on their Facebook profile — from Boy Genius Report
• Facebook Isn’t Actually A Good Way To Judge Potential Employees, Say Researchers — from The Not-So Private Parts
• Study: Facebook Profile Alone Isn’t Good Hiring Barometer- Duh! — from employeescreenIQ Blog
• Next Big Practice Area: Privacy Class Action Lawsuits? — from Technologist

HR & Employee Relations

• How to Be a Family-Friendly Boss — from Harvard Business Review
• Why Valve doesn’t care if you take a sick day — from The Verge
• Revise Your Handbook to Minimize Employee Misconduct This Year — from i-Sight Investigation Software Blog
• Can You Fire an Employee For Applying For Unemployment Benefits? — from Minnesota Employer  
• Should we disparage non-disparagement clauses? — from Minding the Workplace
• 7 high school lessons that hold true in the workplace — from Ragan.com

Wage & Hour

• If My Office Is Closed For Snow, Do I Get Paid? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Employee Training: Paid or Unpaid? — from Wage & Hour Defense Blog
• Do Sales People + Salary/Wages + Commissions (Still) = Overtime? — from The Emplawyerologist
• Where Defendant Retains Right to Reject Contracts Obtained by Door-to-Door Solicitors, Otherwise Allowed by Law to Enter Into Contracts, Outside Sales Exemption Inapplicable — from Overtime Law Blog
• Ohio Minimum Wage has increased to $7.95 per hour — from Business, Employment and Real Estate Law in Ohio
• A Triple Dog Dare: Take These Five Steps in 2014 to Drastically Improve Your FMLA Compliance — from Jeff Nowak’s FMLA Insights

Labor Relations

• 7 Tests to Tell if You Have Just Cause to Fire — from Corporate Counsel
• Union’s Rejection of Company’s “Final” Proposal Does Not Always Signify Impasse — from New York Labor and Employment Law Report
• NLRB Finds Lawful Email Policy Used Unlawfully Against Union Members — from Matt Austin Labor Law
• RIP NLRB Poster Requirement — from from Phil Miles’s Lawffice Space
• If You Saved that NLRB Poster You Can Now Throw it Away! — from Mike Haberman’s Omega HR Solutions
• The NLRA Rights Poster Lives on Through Other Means — from Labor Relations Update

   

Blackballing as retaliation

Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the ADA, or the ADEA…) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.

So, if Ms. Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against—provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivating factor, depending on the nature of the underlying protected activity) for the failure to hire.

What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Ms. Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.

Tread lightly if banning workplace gossip, says NLRB Judge

I recently came across a blog post that answered the question of how to deal with workplace gossip. One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute [pdf].

Laurus distributed a no-gossip policy to its employees. Among other non-work-related prohibitions, the policy prohibited employees from “talking about a person’s professional life without his/her supervisor present.” It also bans any discussion of one’s personal life outside of one’s presence, any disparaging comments or criticism of another, or the creating, sharing, or repeating of rumors about another or of information that could damage another’s reputation or credibility.

The ALJ concluded that this policy was vague and overly-broad, and therefore illegal under Section 7 of the National Labor Relations Act.

It narrowly prohibits virtually all communications about anyone, including the company or its managers. In fact, read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present. Such an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity, and violates Section 8(a)(1).

It’s been argued that the private workplace is where free speech goes to die. And it’s true that employees in the private sector do not have free-speech rights. Yet, the NLRB, through its activist interpretation of Section 7’s protected concerted activity rights are trying to change the rules. 

The no-gossip rule in Laurus Technical Institute was innocuous. On its face, it was attempting to cure the corruption, distraction, and moral-sapping caused by gossip among employees. No employee could reasonably read that policy to affect discussions about wages, hours, and other terms and condition of employment. Yet, the ALJ still used Section 7’s reach to invalidate the rule.

Until the NLRB reaches a more reasonable stance on this issue, employers need to tread carefully, and consult with counsel, about any policy that reaches workplace speech. In the meantime, if gossip among employees is a pervasive problem harming your workplace, but you are wary about being in the NLRB’s crosshairs, consider training your employees about the evils of gossip and the meaning of a respectful workplace. This training will likely pay a better dividend than a policy statement in a handbook that most employees probably ignore, or never read in the first place.

A weighty lesson on pregnancy discrimination

It’s the first full week of January, which means that lots of people are attempting to execute on their New Year’s resolutions. Many of those resolutions will focus on weight loss. What if your company does the same, and decides, for wellness or other reasons, not to hire anyone over a certain weight? If your company is in the business of weight loss, like Weight Watchers, for example, such a policy makes a lot of sense. What if, however, that policy results in your company refusing to hire a pregnant woman? Does your “no overweight hires” policy violate Title VII by screening out pregnant women?

According to EEOC v. WW Group (E.D. Mich. 12/2/13), the policy fails as violating Title VII’s proscription against pregnancy discrimination:

On the facts of this case, a reasonable juror could conclude that Broughton’s weight gain putting her above her goal weight was solely attributable to her pregnancy, that this weight gain was totally unrelated to her ability or inability to perform the job (as evidenced by the fact that WW permits pregnant group leaders to continue to conduct group meetings) and that she was wrongly denied the right to apply for a position with WW.

In this case, however, WW’s policy did not cause it’s downfall. WW caused its own downfall through its uneven adoption of two conflicting policies. The EEOC challenged WW’s refusal to hire Wendy Lamond-Broughton as a group leader or receptionist because her pregnancy caused her to weigh-in over her goal weight. According to WW, there are “legal, moral, and ethical reasons” not to hire Broughton, because the public will question its credibility as a company if its own employees appear not to be following the program. Yet, WW does not apply the same rules to those it already employs. If a current employee weigh in over their goal weight as a result of pregnancy, WW does not terminate them, but instead permits them to work until a doctor says otherwise. Thus, because current pregnant, overweight employees can keep their jobs, the “legal, moral, and ethical” business justification for refusing to hire Broughton falls apart.

This case has a lesson deeper than merely, “Don’t have a policy that screens out pregnant women.” If you are going to have such a policy, make sure that you can justify its existence. If WW refused to allow anyone over their goal weight to work for the company, then this case would have ended differently. Once, however, WW allowed some overweight pregnant women to work, it lost the ability to argue that a legitimate, non-discriminatory business reason supported its decision not to hire Broughton.