U.S. Chamber of Commerce challenges EEOC over its “unreasonable” enforcement tactics

I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics (for example, here, here, here, here, and here).

Earlier this week, the U.S. Chamber of Commerce published a 25-page report [pdf] (h/t Wall Street Journal), in which it challenged the EEOC on its “unreasonable” enforcement tactics. According to the Chamber, its analysis of the EEOC’s enforcement and litigation strategies “reveals an agency which often advances questionable enforcement tactics and legal theories.” For example:

• EEOC will pursue investigations despite clear evidence that any alleged adverse action was not discriminatory—such as terminating an employee caught on videotape leaving pornography around the workplace.
• EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.”
• A federal case in which the judge criticized EEOC for using a “sue-first, prove later” approach. 
• A federal case brought by EEOC which the judge described as “one of those cases where the complaint turned out to be without foundation from the beginning.” 
• A federal case in which the judge criticized EEOC for continuing “to litigate the … claims after it became clear there were no grounds upon which to proceed,” describing the EEOC’s claims as “frivolous, unreasonable and without foundation.”

The report also challenges the EEOC’s amicus program, in which, according to the Chamber, federal courts rejected the agency’s legal interpretations (premised on its formal enforcement guidance and other policy statements) approximately 80% of the time.

From all of this data, the Chamber concludes:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However, … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of “too little, too late”: by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose.… 

What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national origin discrimination and credit-related background checks.

While the entirety of the 25-page report is intellectually interesting to employers, it doesn’t mean a hill of beans if the EEOC sues you. As we all know, lawsuits are expensive. It could cost you millions of dollars to prove the EEOC wrong. I doubt you want to spend millions defending one lawsuit? So what are you to do? Sadly, you are to do what the EEOC says, or risk ending up in the agency’s money-vacuum crosshairs.

Yet, I believe that the EEOC does not care how many times federal courts rebuke its litigation tactics—that the mere threat of an expensive enforcement action is sufficient deterrent for the agency to put forth its enforcement agenda. For example, is the EEOC correct that credit and criminal checks always have a disparate impact on minorities, no matter why an employer uses them? Probably not. But, the alternative is a potential million-dollar lawsuit. The agency is making law by the threat of lawsuits. This legislation-by-extortion is dirty pool, and undermines all of the good the agency does to promote equal rights for all in employment.

A rock-and-roll employment lesson, via the Old 97’s

Last Thursday night, I took my daughter to see the Old 97’s. By way of backstory, Norah performed an Old 97’s song, The New Kid, during her first concert for School of Rock back in January. I tweeted the link to the video to the band’s lead singer, Rhett Miller, who was kind enough (and cool enough) to tweet back, as was the band, who called Norah “badass.” The band was also nice enough to share the video on their Facebook page.

Thanks to a kind gesture from a good friend, Norah and I got to go backstage before the show to meet Rhett. He remembered Norah’s performance from YouTube, they talked about school and his 8-year-old daughter, he told her to call him when she gets her first paying gig, and he posed for some pictures.

The downside of going backstage before a SRO show, however, is that we lost our front-of-stage spot. The upside of going to a concert with an 8-year-old is that she can wiggle her way back through the crowd, and I get to say, “Excuse me, I can’t lose my kid.” Norah found her way back to the front of the stage, right in front of guitarist Ken Bethea, and managed to sit on the stage for the entire concert.

Being that close, I could see the setlist taped to the stage. It certainly appeared to me that the band changed their set mid-show to add The New Kid. Before the song, Rhett talked about Norah and her YouTube video, and called her “a cool kid”. And all these people around us start saying to Norah, “Oh my god! You’re the girl from YouTube. You rock!” Knowing her, I’m surprised she didn’t stand up and take a bow.

During Big Brown Eyes, Rhett appeared to look right a Norah, and, with a big smile, sang the line, “You made a big impression for a girl of your size.”

Rhett name checked Norah again while apologizing to her for the swearing during the show (sorry, video NSFW).

At the end of the show, Rhett walked up to Norah and said, “Norah, this is for you,” and handed her his pick. She was beaming.

It was a magical night for Norah, and I am so happy I got to share it with her. BTW, the band is great live, and if they are in your area, this summer or any other time, you should definitely check them out.

Employers, here’s your homework assignment. Create some magic for your employees. Rhett could have said no when someone asked if we could come backstage, but he didn’t. He didn’t have to change their setlist to add a song, but he did. In fact, he didn’t have to do anything to make Norah feel special, but he did—more than most in his situation would have—and he nurtured a fan for life.

You can (and should) do the same for your employees. And you don’t need big, expensive gestures. The small things count. Here are a few ideas to engage your employees, demonstrate your appreciation of them, and keep them content and engaged:

• Ask peers to nominate and vote for an employee of the month, whom you recognize with a plaque and gift certificate to a local restaurant.
• Start a staff-appreciation program, in which employees earn points for behavior you want to incent (such as attendance or punctuality), and can trade in those points for rewards (such as an extra vacation day).
• Randomly provide longer lunch breaks, in recognition of jobs well done.
• Circulate department or company-wide emails to praise employees when they have successfully completed a project or otherwise done something worthy of recognition.
• And, the easiest one of all, pay praise forward. If one employee says something nice about another, make sure the recipient knows about it, as soon as possible.

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]