Sexual discrimination vs. sexual favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, is morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination,, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

Don’t fire employees on the heels of a cancer diagnosis

You can’t escape the fact that October is Breast Cancer Awareness Month. Pink is everywhere. Women are wearing pink everything. Buildings are ablaze in pink lights. And NFL games are awash in pink arm sleeves, handkerchiefs, and end-zone paint.

So, it’s appropriate that I bring you the story of a Chicagoland woman allegedly forced off her employer’s health insurance after her breast-cancer diagnosis, and later fired for complaining about it.

 

From the Chicago Tribune:

When Harrington [the employee] learned that she had an abnormal mammogram, the suit said, Quinlan [the employer] began pressuring her to get off of the company’s group health insurance policy. Quinlan forced her off the policy the next month, according to the suit, when she was diagnosed with breast cancer and needed treatment.

Quinlan became angry with her for complaining about not being on the insurance policy, according to the suit, saying that insurance costs would be much higher with her on the policy. Quinlan then fired Harrington, the suit claims.

There is little doubt that the ADA protects cancer as a disability. While a lawsuit is nothing more than a statement of unproven facts, if there is any truth to the allegations in this lawsuit, this employer is going to have big problems.

For want of a well-placed pickle: will your termination pass the red-face test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes”to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are mis-aligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.

WIRTW #339 (the “iWork” edition)

What’s it like to work for the richest and most admired company in the world? Boy Genius Report writes that being an Apple employee might not be on par with being an Apple fan, in Ex-Apple managers spill dirt on what it’s like to work there, say Apple execs “are nuts.”

Do you love working long hours, spending a lot of time away from your family, and dealing with insanely demanding bosses? If so then there’s a little company in Cupertino that just might be the perfect place for you to set up shop….

“It’s a stressful job, there’s a lot of responsibility, and you always have to be on,” said Melton, who also described Apple execs as “nuts.” “I mean, it’s not that it’s not fun, it’s not that it’s not fulfilling, it’s not that you don’t get to work around all these brilliant people. The bad side effect is they’re all, like, workaholic, psychotic brilliant people.”

BGR has more, including a link to the full interview with two former Apple managers.

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

Discrimination

• EEOC files first transgender suits against private employers — via Robin Shea’s Employment & Labor Insider
• Three more courtroom defeats for EEOC — via Walter Olson’s Overlawyered
• Is Your Company’s Dress Code Discriminatory? — via In House
• A Monday Night Football lesson on workplace religious accommodations — via Eric Meyer’s The Employer Handbook Blog
• EEOC: Trolling for plaintiffs — via EmployerLINC
• Don’t Fire An Employee When She Tells You She is Pregnant — via Employment Discrimination Report
• Employers’ Hands are Tied: New Washington D.C. Law Goes Beyond Ban the Box — via employeescreenIQ Blog

Social Media & Workplace Technology

• Are Websites Places of Public Accommodation? — via HR Defense Blog
• Keeping Secrets on Social Media: Part I and Part II — via Molly DiBianca’s Delaware Employment Law Blog
• Two Courts Permit Defendants To Be Served on Facebook — via Above the Law
• Ello: The Hot New Anti-Facebook Social Network — via Technologist
• Ello vs. Facebook — via The Not-So Private Parts
• What Messaging Tool Should You Pick to Tell Off Your Boss? — via The Tim Sackett Project
• After Torching Laptop, CEO Feels the Heat of Sanctions — via Suits by Suits

HR & Employee Relations

• Your Former Employees Want a Reference, Here Is What Your Attorney Thinks About That — via Suzanne Lucas, writing at Inc.com
• It May Not Get You Arrested, but it May Not Keep You Employed — via WSJ Law Blog
• How to Deal with Bullies at Work — via Harvard Business Review
• Happy New Year! OSHA’s Revised Recordkeeping Rule — Major Implications on Employers — via Employment Law Lookout
• “No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection? — via The Labor Dish
• Do Supervisors Have To Save Employees During An Emergency? — via Evil Skippy at Work
• Your Employer Wants To Indoctrinate You With Their Politics — via Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• A Reminder About the Dangers of Employee Misclassification — via Employment & the Law
• How To Decertify an FLSA Collective Action — via Minnesota Employer
• Has Wal-Mart Helped to Expand the Scope of Joint Employment? — via The Emplawyerologist
• Julia Roberts Would Not Be Impressed: Mystic Pizza Cited for Wage/Hour Violations — via Dan Schwartz’s Connecticut Employment Law Blog
• Giving an employee a piece of the action may violate the FLSA — via Mike Haberman’s Omega HR Solutions
• Off-the-Clock Security Checks — via Wage & Hour - Development & Highlights
• Leave Laws, FMLA, and the Workplace — via Blogging4Jobs

Labor Relations

• Remember that Job You Had 11 Years Ago? Well Good News! — via Phil Miles’s Lawffice Space
• NLRB Postpones Creation Of Employee Right To Use Employer E-Mail For Union Activity — via Labor Relations Today
• Steelworkers Playbook on How They Plan to Reform Labor Law — via Matt Austin Labor Law
• Labor Board Gets an F for its Treatment of A-List — via EntertainHR
• The Death of Courtesy and Civility Under the National Labor Relations Act — via Socially Aware Blog

Image by Rob Janoff (Apple) [Public domain], via Wikimedia Commons.

BREAKING NEWS: U.S. Supreme Court to take up issue of workplace religious accommodation

It’s day one for the U.S. Supreme Court’s 2014-2015 term, and the Court has already made big employment law news.

The Court has accepted the the appeal filed by the EEOC in EEOC v. Abercrombie & Fitch Stores, Inc. 

This case, which concerned whether Title VII’s religious accommodation provision required the retailer to grant an exception to its “Look Policy” for a hijab-wearing job applicant, has an interesting procedural history. The EEOC won summary judgment at the trial court. The 10th Circuit then reversed, and issued summary judgment for the employer, concluding:

The EEOC did not satisfy the second element of its prima facie case, as there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing her hijab stemmed from her religious beliefs and that she needed an accommodation for this (inflexible) practice.

Let’s hope for some concrete guidance from the Court on this timely and perplexing issue.

I’ll have much more to say about this case next year after the court holds oral argument. In the meantime, for more on “look policies” and religious accommodations, see my earlier thoughts:

• A Muslim walks into a store… Corporate “Look Policies” and religious discrimination
• Accommodating religions starts at home (a love story)
• Do you know? Discrimination against Muslims
• Religious accommodation versus public image
• Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits
• WIRTW #237 (the “don’t judge a book by its cover” edition)
• Halting the tide of religious-discrimination claims

Add “no loitering” to the list of potentially unlawful work rules, per the #NLRB

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims.

In EYM King of Michigan, an NLRB administrative law judge considered the following policy, implemented by a Burger King franchise:

Loitering and soliciting either inside or outside on Company premises is strictly prohibited. You should arrive some minutes before your entry hour and leave the as soon as you finish your shift. Employees are not authorized to remain in the restaurant after work. If you are not working or eating in a store, your conduct may be construed as loitering. If you are off-duty and return to the store to speak with employees who are working, your conduct may be considered loitering. Former employees who return to the store to speak with employees who are working are loitering. This policy is designed to prevent the disruption of company business due to unnecessary interaction with non-working employees or non-employees. Employees who violate this policy may be subject to discipline, up to and including termination.

The ALJ concluded that this policy unlawfully restricted employees’ rights to engage in protected concerted activity because it impeded employees’ ability to gather, and, by implication, discuss wages, hours, and other terms and conditions of employment. The judge also was not persuaded by the employer’s professed “safety” concerns for its employees:

Respondent’s justification for its rules is that its restaurants are located in high-crime areas.  To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights….

Respondent’s professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious. The company has made no showing as to how this rule enhances safety. In this regard, it does not prohibit customers from eating food purchased at its restaurants while sitting in their cars in the restaurant parking lot. Moreover, people are just as likely to be the victims of violent crime at Respondent’s drive thru windows as anywhere else on the exterior of the restaurant.

No employment policy that could potentially impact employees’ ability to discuss work is safe from the NLRB’s scrutiny. If you have not had a labor and employment lawyer review your handbook and other policies, you are doing your business a severe disservice, and taking a huge risk, in this hyperactive regulatory environment.

EEOC wastes its scarce resources by filing lawsuits without claimants

The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.

According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation….  In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”

According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”

Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency.