The times they are a changin’ for LGBT discrimination

Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.

Does social media hold the cure for your malingering, hooky playing employees?

In one of the better earlier episodes of The Office, the Assistant to the Regional Manager, Dwight Schrute, thinks that one of his co-workers is faking an illness to get out of work. So, he stakes out the employee’s house to investigate and uncover the truth.

 

According to a recent Harris Poll (h/t: Cleveland.com), figuring out if your employees are cheating on their sick leave is no longer as complicated as a stake out, and is only as far away as a few clicks of your mouse. According to the poll, nearly a quarter of employers have caught their employees lying on social media about being sick. Of those caught, a quarter were fired, while half were disciplined or reprimanded.

 

 

Three observations—

 

     1. If you think an employee is abusing sick leave or other time off, a little investigation on social media appears to go along way to ferreting out the truth. You no longer need to go the Dwight-Schrute route to determine if an employee is lying to you about the reason he or she isn’t at work. You should be adding social media to your quiver of investigatory tools. Otherwise, you could be missing a key (and easy) piece of the puzzle.

     2. The employment relationship is based on trust. Once that trust disintegrates, the relationship is almost certainly unsalvageable. I’m almost as shocked that only 25% of employers who have caught an employee lying about sick leave fired the offending employee, as I am that that another 25% appear to ignore the indiscretion completely. While I agree that we need better time-off policies in this country, it is still no excuse for lying.

     3. Then again, if an employee is so reckless (or senseless) as to tell an employer one thing, and then post the exact opposite on Facebook or Twitter an hour later, maybe I don’t want that employee working for me anyway. Just saying.

WIRTW #342 (the “family photo” edition)

Photo by Jenny Gildea Photography (who I cannot more highly recommend).

Here’s what I read this week:

Discrimination

• “How Can We Accommodate You?” — via Employment Discrimination Report
• Hearing Religious and Pregnancy Discrimination Cases Appeals to the Supreme Court — via The Emplawyerologist
• Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial — via Labor Employment Law Blog
• EEOC’s Current Enforcement Guidance on Pregnancy Discrimination — via The L•E•Jer
• I Quit! Constructive Discharge Serves as Substitute for Adverse Employment Action — via Texas Employment Law Update

Social Media & Workplace Technology

• Do you know your Klout Score? Social media and the hiring process — via Technology for HR
• Top 10 Technology Blunders for Employers — via Robin Shea’s Employment & Labor Insider
• A Perk of BYOD Policies at Work — via Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• The Ebola Scare: 10 Workplace Issues HR Should Be Ready For — via TLNT
• Ebola Alert: OSHA Releases Guidance on Employer and Employee Obligations — via Troutman Sanders HR Law Matters
• Fired Over Fears of Ebola: What you need to know. — via Texas Employment Law Blog
• 31% Of Sick Employees Think Boss Appreciates Their Presenteeism — via Workplace Diva
• Bully For You? Not When It Comes To Workplace Bullying — via Dan Schwartz’s Connecticut Employment Law Blog
• 12 Point Action Plan—Handling Violence in The Workplace — via HR Daily Advisor
• When the employer goes too far: The Jimmy John’s Non-Compete — via Smooth Transitions
• Unlimited Vacation Policies Suck! — via The Tim Sackett Project

Wage & Hour

• Late Payment of Wages Constitutes Non-Payment of Wages, Subjecting Employer to Liquidated Damages Under FLSA — via Overtime Law Blog
• You’d think emailing FMLA paperwork would be ok. Yeah, you’d think that. — via Eric Meyer’s Employer Handbook Blog
• Does FMLA Leave and Short-Term Disability Leave Run Concurrently? — via Wisconsin Employment & Labor Law Blog
• The Affordable Care Act—Countdown to Compliance for Employers, Week 10: What’s an Employer to Do (with Marketplace Notices)? — via Employment Matters Blog

Labor Relations

• ALJs Signal That D.R. Horton Is Alive And Well — via Labor Relations Today
• NLRB Modifies Standard Remedial Notice to Include QR Code and Link to Board’s Web Site — via Pennsylvania Labor and Employment Blog
• Employers are Often Surprised Who Can Vote in Union Elections — via Matt Austin Labor Law
• Ebola and Potential Labor Relations Issues — via Labor Relations Update

“He liked breasts” is never an appropriate response to a harassment complaint

Ruby Blackmon claimed that for a ten-month period, her second-level manager inappropriately stared at her breasts three to 10 times per day, would sexually rub her back, and would breath on her back and ear. Blackmon made ten different complaints to an HR manager, an administrative manager, and her immediate supervisor, all of which were ignored, except for one occasion when her immediate supervisor simply told her that the alleged harasser “liked breasts.” To make matters worse, on the heels of one complaint, her immediate supervisor gave her a negative evaluation. She filed suit after her termination.

Surprisingly, the district court granted this employer’s motion for summary judgment. Not surprisingly, the 6th Circuit reversed in Blackmon v. Eaton Corp. (10/16/14), concluding that genuine issues of material fact exists on the objectively hostile nature of the work environment and on whether there existed a causal nexus between Blackmon’s complaints and her termination.

We know that “He liked breasts” is an inappropriate response to a harassment complaint. What is an appropriate response? Here are 10 steps to follow if you receive a harassment complaint from an employee.

1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be, meaning that the lawyer conducting the investigation might not be able to represent your company in any subsequent lawsuit.
2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
4. Don’t demean, belittle, or joke about the alleged victim. It will undermine the objectivity of your investigation.
5. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
6. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
7. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
8. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
9. Document the investigation.
10. Never, never, never retaliate.

“Honest belief” isn’t a defense to an FMLA claim, says federal court

The honest-belief rule is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

The case involved an employee whose newborn daughter had Down syndrome. He got stuck on vacation in Florida because of medical complications with the daughter, which delayed his post-vacation return-to-work date. The employer, based on pattern of similar prior non-medical issues with extended vacations, believed he was malingering and fired him.

The employer claimed as its defense to Yontz’s FMLA claim that it had an “honest belief” that Yontz “misused his pre-approved, intermittent FMLA leave.” The court disagreed, and rejected the application of the honest-belief defense in FMLA interference cases:

Dole may not use an honest mistaken belief that Yontz misused FMLA leave as a legitimate non-discriminatory reason for his termination. That Yontz received attendance points for using what may have been legitimate intermittent FMLA leave is the problem, not a legitimate, non-discriminatory excuse for the problem. The Sixth Circuit has not decided whether the rule applies to FMLA interference claims. To so rule would be to reward and encourage ignorance of a law our democratic process has seen fit to enshrine in law.

Per this case, the FMLA requires more than an honest belief to deny an employee FMLA leave. Thankfully, the FMLA provides employers myriad tools to check and double-check the legitimacy of an employee’s claim for leave. Employers have medical certifications, re-certifications, checks for authenticity and clarification, and second and third opinions. As this case shows, an “honest belief” will not save an employer who denies an employee’s FMLA request without first exhausting all available avenues of communication and clarification with the employee.

Cop caught sleeping on the job awarded $1M in ADA lawsuit — what could this employer have done differently?

A federal jury awarded nearly $1 million to a former police officer, allegedly fired after sleeping on duty.

According to the McPherson Sentinel,  alleged the city violated his civil rights, the Americans with Disabilities Act, the Family Medical Leave Act, and the Kansas Wage Payment Act when he was fired for sleeping on the job. Michaels has sleep apnea, and claims that the disability resulted in his dismissal, which was a violation of his rights. It appears the courts agree.

Matthew Michaels had worked as a police office in McPherson, Kansas, for nine years. From 2006 to 2007, Michaels had three on-duty at-fault car accidents. Three years late, he was suspended after being repeatedly caught sleeping in his patrol car. Thereafter, Michaels was diagnosed with obstructive sleep apnea, for which he received medical treatment and had no further incidents of falling asleep on duty.

Micheals performance problems, however, did not end. Two years later, the city fired Michaels for a variety of performance issues, which included insubordination and arguing with superiors.

If Michaels’ sleep issues ended two years prior to his termination, how did he hit for nearly $1 million in his ADA lawsuit? Because his supervisor listed his prior incidents of sleeping on duty as one of the reasons for his termination.

Unless an employee is absolutely unable to perform the essential functions of the job with (or without) reasonable accommodations, a medical diagnosis should never come into play as a reason for termination. In this case, the medical issues stopped impacting Michaels’ job performance once he began receiving treatment. Thus, there was absolutely no reason to mention the two-year-old (and under control) sleep issues in support of the termination decision. This employer had other good reasons to fire this employee. It dropped the ball, however, by adding his medically-caused, stale, performance problems into the termination equation.

What if…? Internet use as a disability

Last year I reported on the possibility that Internet use could become an ADA-protected disability. Now, we have one of the first documented cases of this phenomenon. From CNN:

A man who checked in to the Navy’s Substance Abuse and Recovery Program for alcoholism treatment was also treated for a Google Glass addiction, according to a new study.

San Diego doctors say the 31-year-old man “exhibited significant frustration and irritability related to not being able to use his Google Glass.” He has a history of substance abuse, depressive disorder, anxiety disorder and obsessive-compulsive disorder, they say.

The man was using his Google Glass for up to 18 hours a day in the two months leading up to his admission in September 2013, according to the study…. “He reported that if he had been prevented from wearing the device while at work, he would become extremely irritable and argumentative,” the doctors write.

The Guardian adds that “the patient repeatedly tapped his right temple with his index finger, … an involuntary mimic of the motion regularly used to switch on the heads-up display on his Google Glass.”

This supposed addiction is not limited to wearables like Google Glass. For example, CBS News recently reported on the physiological changes to the brain that could result from too much Facebook use.

What results when we toss this story into the employment-law blender?

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, you may have to engage them in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area?

• Do you have a policy that prohibits non-work-related Internet use? If so, it might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

These are difficult issues, exacerbated by the novelty of the concept. Nevertheless, the more the Internet becomes entrenched in our lives (if that possible), the greater the likelihood that employees will begin embracing ideas such as Internet addiction as a disability and the need for employers to consider and provide reasonable accommodations. It’s a brave new world, we just happen to work in it.