EEOC cracks down on employer’s "English-only" rule

The EEOC yesterday announced that it has filed a lawsuit against a Wisconsin metal and plastic products manufacturer, claiming that it fired a group of foreign employees because of their national origin. According to the lawsuit, each of the 10 fired employees received overall satisfactory ratings on their annual performance evaluations, but received mark-downs for their English skills, which the EEOC alleges were not needed to perform their jobs.

According to EEOC Chicago Regional Attorney John C. Hendrickson:

Our experience at the EEOC has been that so-called “English only” rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin—and thus violates federal law.

I initially addressed this issue almost seven(!) years ago in a post entitled, English-only workplaces spark lawsuits. English-only rules are legal as long as the employer can show a business need for the policy (for example, inter-employee communication or workplace safety). An overly restrictive rule (for example, prohibiting non-English-speaking in non-work areas such as the lunchroom), however, might violate Title VII’s prohibition against national origin discrimination. You can read my original post to learn the ins and outs of this interesting issue that has caught the EEOC’s attention.

In this case, the EEOC alleges that the employer penalized the employees for English fluency in non-essential functions. If you intend to enforce an English-only rule, make sure you can justify the nexus between English fluency and job performance. For example, would safety or efficiency be impacted if employees cannot communicate in English? Does the job require interaction with non-employees, such as vendors or customers? If you can demonstrate a nexus between English proficiency and essential job performance, your English-only policy will have a much greater chance of surviving EEOC scrutiny.

Equal treatment in workplace misconduct helps avoid an ugly discrimination claim

Matthew Caiazza worked as a nurse at Mercy Medical Center. He would often take smoke breaks with Jennifer Jones, a food services worker.

On August 28, 2010, Jones reported to her supervisor that during one of the smoke breaks, Caiazza had inappropriately touched her breast outside of her clothing. Caiazza explained that Jones asked him to touch her breast in exchange for Vicodin. When he told her that he could not give her any Vicodin, she said he could touch her breast anyway, which he did. Jones reported the incident to HR, who compelled Caiazza to resign. He sued, alleging, among other claims, sex discrimination.

In Caiazza v. Mercy Medical Center (6th Cir. 5/27/14), the appellate court concluded that because of the unequal treatment doled out to the two culpable parties, Caiazza’s sex discrimination claim should proceed to a jury trial. 

Given … Mercy’s concession that the sexual contact during [Caiazza’s] smoke break off property was consensual, there is a clear disparity of treatment between [Caiazza] and Jones.

Parties who are equally culpable in workplace misconduct should be treated equally. If the parties are of different sexes, races, ages (substantially younger), etc., then the “should” turns into a “must.” Disparate treatment is, well, disparate treatment, which, as this case points out is a Title VII no-no. 

WIRTW #324 (the “Wir werden du bald sehen” edition)

I have used this space to write a lot about my family. You know I’m married, have two amazing children, Norah and Donovan, and a dog. But, you may not know that my family includes a teenager too. We call her our German daughter. She’s been living with us for the past 10 months. Next week, she leaves us to go home. You never know what the experience will bring when you permit someone to share your home and your lives for a year. We hoped for the best, and with our year coming to a close, I can say we got it. We gained another member of family, albeit one that lives more than 4,000 miles away. I will always think of Zarah as our German daughter.

For more on the experience, please read my wife’s thoughts on her blog.

As for Zarah, this is not, “Auf Weidersein,” but, “Wir werden du bald sehen.”

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

Discrimination

• Sex at work: test your knowledge! — from Robin Shea’s Employment and Labor Insider
• Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs — from Donna Ballman’s Screw You Guys, I’m Going Home
• The EEOC is Focusing on Systemic Harassment. So Should You. — from Jonathan Segal
• Does Telling Me To Stop Complaining Count As Discrimination? — from Evil Skippy at Work
• Miles on Pregnant Workers Fairness Act — from Phil Miles’s Lawffice Space
• “Racism In The Everydayness” — from Employment Discrimination Report

Social Media & Workplace Technology

• “This man says he’s willing to die so he can post naked pictures without getting fired” — from How Appealing
• Why Social Media is Becoming an HR Issue — from GMS Blog
• Employers crack down on social media abuse — from Business Management Daily
• 20 cool iOS 8 features that Apple barely even mentioned at WWDC 2014 — from Boy Genius Report

HR & Employee Relations

• What Single Policy Could Ease Americans’ Time Crunch? — from Time
• Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work) — from Eric Meyer’s Employer Handbook Blog
• By 2020 Millennials Will Represent 40% of the Workforce. Are You Ready? — from Blogging4Jobs
• Employment Protections for Medical Marijuana — from Minnesota Employer

Wage & Hour

• FLSA Transparency Threat Persists — from Compensation Cafe
• Overhauling overtime — from HR Hero Line
• Telecommuters, Minimum Wage and Overtime — Oh My! — from The Emplawyerologist
• FLSA Overtime, Minimum Wage Lawsuits Continue to Skyrocket — from Wage & Hour Insights

Labor Relations

• One Is the Loneliest Number….But Even Acting Alone Employees May Be Engaged in Concerted Activity — from All in a Day’s Work
• NLRB Round-up: The Long Arm of Labor Law — from Blogging4Jobs
• Threatening the boss: the NLRB weighs in — from Michigan Employment Law Connection
• NLRB Finds Employee’s Profane and Insubordinate Conduct Shielded by Protected Activity — from Labor Relations Today

Federal court blows up EEOC's stance on medical leaves of absence

I had this long elaborate post written about Hwang v. Kansas State University (5/29/14) [pdf], in which the 10th Circuit court of appeals held an employer did not have to offer a leave of absence greater than six months to accommodate an employee’s disability, and that an employer can have an inflexible leave of absence policy that places a hard cap on an employee’s medical leave of absence.

Grace Hwang, an assistant professor at Kansas State University, signed a written one-year teaching contract. Before the start of fall term, Ms. Hwang was diagnosed with cancer.  She sought, and the University granted her, a six-month (paid) leave of absence for treatment.  Near the end of her leave, Ms. Hwang’s doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer semester. The University, however, refused, citing an inflexible policy allowing no more than six months’ time off.  In response, she sued, claiming that by denying her more than six months’ leave the University violated the Rehabilitation Act.

The 10th Circuit held that Hwang’s need for an extended leave of absence disqualified her from the protections of the disability discrimination laws:

Still, it’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.… 

Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is “inflexible,” as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency. 

My post would have provided you insightful analysis of Hwang, discussing how this case in an outlier. That employers should still think long and hard (and only after engaging in the interactive process) before denying an extended unpaid leave of absence under the ADA. And that employer’s are most safely served by having a flexible leave of absence policy instead of a hard-capped one.

But, three of my favorite employment law bloggers beat me to the punch with their own thoughts.

• Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating — from Jeff Nowak’s FMLA Insights
• Just how badly did a federal appellate court trash extended leave as a reasonable accommodation? — from Eric Meyer’s Employer Handbook Blog
• Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes. — from Dan Schwartz’s Connecticut Employment Law Blog

Jeff went so far as to Twitter-challenge me to pick the best of the three posts.

@danielschwartz @Eric_B_Meyer, we all were thinking the same blog post this weekend. Should we have @jonhyman vote on which 1 is best? :)
— Jeff Nowak (@jeffreysnowak) June 3, 2014

Haven’t I already done enough?

What the f‽ NLRB allows employee to curse out the boss

During a meeting about commissions, minimum wage, and employee breaks, an employee lost his temper, angrily calling his supervisors words such as “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole.” He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14) [pdf], the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.

We conclude that affording the Act’s protection to Aguirre here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees. Thus, Aguirre’s outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard Aguirre’s obscene and denigrating remarks to the owner.

We also conclude that affording the Act’s protection to Aguirre will further the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s legitimate interest in maintaining workplace discipline and order for the additional reason that the Respondent provoked Aguirre’s outburst…. Aguirre’s outburst occurred contemporaneously with Plaza’s twice suggesting that Aguirre could quit if he did not like the Respondent’s policies, Plaza’s censure of Aguirre’s protected activities as a lot of negative stuff, and Plaza’s telling Aguirre that he should not complain about Respondent’s pay structure, all of which made clear that he would not engage in the merits of Aguirre’s complaints.

This case should be troubling to all employers. Apparently, we live in a world in which an employee can call his boss a f***ing mother f***er” and get away with it, merely because it was said during a meeting in which the employee also happened to be discussing certain working conditions. If an employer cannot enforce reasonable restrictions agains insubordination (especially to this level), then we are. It that far from the NLRB letting the chickens run the workplace henhouse. How will employers be able to effectively manage then?

[Hat tip: Today’s General Counsel]

A black and blue lawsuit: Tiffany & Co. sued for race discrimination

My dog’s name is Loula Mae. “Loula” is name of the dog on the kids cartoon Pocoyo, which my son was obsessed with when we got her. “Mae” just sounded right to pair with Loula, and gives her a bit of a gentile, southern charm. Little did we know, however, that the birth-name of Holly Golightly, the iconic lead played by Audrey Hepburn in Breakfast at Tiffany’s is also Lula Mae. Now we know why our dog is so damn classy.

I only tell this story because today’s post is about the famous jewelry store, Tiffany & Co., which has gotten itself into a little legal mess over the racial composition of its management team and its alleged treatment of its lone African-American manager.

The New York Times reports that Michael McClure, a group director Tiffany since 1993, has sued the jeweler, claiming a “systemic, nationwide pattern and practice of racial discrimination.” According to McClure’s lawsuit, he is the only African-American to hold one of the more than 200 management positions at Tiffany. He further alleges that that despite consistently glowing reviews since his hire, the company gave him a “warning for termination” earlier this year. McClure claims that his new boss provided that warning after meeting McClure for the first time, and then telling a group of vice presidents that he was surprised “a black man is representing the Tiffany brand.”

A lawsuit is merely a collection of alleged, unproven facts. For its part, Tiffany says that the lawsuit is meritless, and that it “welcome[s] and value[s] diversity in all forms.”

An employer like Tiffany likely does not have any affirmative action requirements—that is, it does not have an obligation to hire a racially balanced workforce. Having said that, however, it does not look good when defending a race-discrimination lawsuit if only 0.5% of your managers are African American. Companies should hire the best employees and fire the worst. Yet, you also need to think about what your business looks like, if for no other reason than having an “almost-all-white” management team is not going to make it any easier to defend the race claim brought by your lone black manager.

photo credit: Shereen M via photopin cc

Employers beware: EEOC appears to be stepping up disability discrimination enforcement

Last month, the EEOC announced that it was seeking “public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973.” That Act governs employment of individuals with disabilities by the federal government, and was the ADA’s precursor. Without explanation, the Rehabilitation Act’s regulations impose an obligation on federal agencies to be “model employers” of individuals with disabilities; the EEOC is seeking to revise those regulations to provide a detailed explanation of that “model employer” obligation.

On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include—

• A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
• A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
• A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse. 
• An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable.
• A lawsuit claiming a Wisconsin energy company fired an wheelchair-bound employee instead of providing his requested reasonable accommodation of an automatic door opener.
• A lawsuit claiming a Tennessee steel company refused to hire an applicant for a maintenance position after learning through a pre-employment medical examination that the applicant took prescription medications for an anxiety disorder and high blood pressure.
• A lawsuit claiming a Connecticut electrical contractor refused to hire a dyslexic carpenter, without first exploring any possible reasonable accommodations for his disability.

What do all of these cases have in common? They all involve employers that failed, in some way, to engage an employee or applicant in the interactive process to determine if he or she could perform the essential functions of the job with, or without, a reasonable accommodation. Instead, the employer appears to have made snap judgments based on the individual’s disability and related stereotypes.

Disability discrimination is very much on the EEOC’s radar. Is your business sufficiently protected? Answer these questions—

• Do you have a reasonable accommodation policy? 
• Do you have accurately written job descriptions? 
• Do your managers and supervisors know what the interactive process is, and how to engage in it? 
• Have you trained your employees on disability awareness and reasonable accommodations? 

Unless you have answered “yes” to each of these important questions, your business is exposed to potential disability-discrimination issues. Considering how closely the EEOC is looking at these issues, is this risk is one your business wants to take?

photo credit: ratsinis via photopin cc