WIRTW #366 (the “same-sex marriage” edition)

Earlier this week, the U.S. Supreme Court heard oral argument in Obergefell v. Hodges, one the Court’s most anticipated cases in years, which will (hopefully) decided the fate of same-sex marriage rights.

The web’s best coverage of the oral argument and its implications comes from SCOTUSblog:

• “Super-cuts” from same-sex marriage arguments
• No clear answers on same-sex marriage: In Plain English
• Argument analysis: Justice Kennedy, hesitant but leaning
• Evening round-up: Today’s argument in Obergefell v. Hodges

Stay tuned. The decision is expected in June, and I’ll be sure to report on its implications for your workplace.

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

Discrimination

• If Bruce Jenner Were Your Employee — via Inc.com
• “My religion or my job?” That’s a bad workplace question. — via Eric Meyer’s The Employer Handbook Blog
• EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees — via Jeff Nowak’s FMLA Insights
• Look! Abercrombie Finally Shifts Hiring Focus After Years of Lawsuits — via In House
• EEOC Considers Commuting a Major Life Activity — via FEDweek
• Spate of Gender Discrimination Lawsuits Against Silicon Valley Technology Companies Highlights the Importance of Adopting and Enforcing Anti-Discrimination Policies and Procedures — via Technology Company Counselor
• You Accommodate Your Employees, But Do They Accommodate Your Customers? — via All in a Day’s Work
• Hey – that EEOC wellness rule isn’t half bad — via Robin Shea’s Employment & Labor Insider
• Company Settles ADA Suit Alleging Violation of Law’s Medical Inquiries, Confidentiality Clauses — via Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• What Do You Do When The Ugly Allegations In A Lawsuit Against Your Company Go Viral? — via The Labor Dish
• Periscope hit 1 million users in its first 10 days — via The Verge
• Do You Lock Your Phone with a Passcode? — via Lifehacker
• Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case — via Employment Matters Blog

HR & Employee Relations

• Is 2015 Becoming the Year of the Employee? — via TLNT
• Watch This Great Webinar on Working Dads, Paternity Leave and Workplace Flexibility — via Fathers, Work and Family
• Weasels and Sociopaths — via HR Examiner with John Sumser
• Is HR Legally Liable for a Boss’s Bad Behavior? — via Evil HR Lady, Suzanne Lucas
• My Co-Worker Called Me A Mother F!@#%r — via Evil Skippy at Work
• The 18 Hottest Background Screening Trends — via Newton Software Blog
• OSHA steps into center ring in unusual accident probe — via Business Management Daily

Wage & Hour

• FLSA Exemption Changes: Some Compensation Alternatives For Salaried Employees — via Wage and Hour Laws Blog
• Gawker FLSA Collective Action Illustrates Clash of Technology and Law — via Above the Law
• Reimbursing Employees for Business Expenses: The FLSA Kickback Rule — via Wage & Hour Insights
• Is Intermittent FMLA Giving You a Chronic Headache? — via The Emplawyerologist
• Eighth Circuit Holds Early Stage Illness Does Not Warrant FMLA Leave — via Minnesota Employment Law Report

Labor Relations

• When Reviewing a Reinstatement Decision by an Arbitrator, Consider Over a Dozen Factors — via Dan Schwartz’s Connecticut Employment Law Blog
• Update on NLRB Election Rules Challenge — via Workplace Prof Blog
• The More the Merrier? A New Lawsuit Against the NLRB’s Election Rule Encounters an Early Setback — via Vorys on Labor
• Con-Way Says No To Teamsters — via Labor Relations Today
• Ambush Elections: Use the Force? — via Labor Relations Institute

Supreme Court ruling on EEOC conciliation obligations is a Pyrrhic victory for employers

One question that employers always ask upon receipt of an EEOC charge of discrimination is, “How does this process work?” After the EEOC concludes its investigation, it has two basic options. It can conclude that no reasonable cause exists that the employer violated Title VII and dismiss the charge (leaving the employee to file his or her own lawsuit in federal court within 90 days), or conclude that reasonable cause does exist (again leaving the employee to file his or her own lawsuit, or instituting a lawsuit on the employee’s behalf).

Before the EEOC can file its own discrimination lawsuit against an employer, Title VII requires that the agency “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” What happens, however, if the EEOC fails to conciliate? What is scope of the EEOC’s conciliation obligation? And does a failure act as a bar to any subsequent lawsuit filed by the EEOC?

These were the question the Supreme Court considered in Mach Mining, LLC v. EEOC [pdf]. This is what the Court unanimously concluded:

1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation.

2. The statute only requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. Such notice must describe what the employer has done and identify the employees (or class of employees) that have suffered. The EEOC then must try to engage the employer in a discussion to provide the employer a chance to remedy the allegedly discriminatory practice. Title VII does not, however, require a good-faith negotiation.

3. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.

4. Should a court conclude (based on “concrete evidence” presented by the employer) that the EEOC did not provide the employer the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, the appropriate remedy is to stay the proceedings and issue an order requiring the EEOC to undertake the mandated conciliation efforts. Dismissal of the lawsuit is not warranted in these circumstances.

Technically speaking, you can chalk this case up as a victory for employers, albeit a narrow one. The Supreme Court refused to hold that Title VII imposes a duty on the EEOC to negotiation in good faith, and that the agency satisfies its obligation to conciliate merely by providing notice and an opportunity to discuss. Moreover, a failure to conciliate doesn’t serve as a jurisdictional bar to litigation, but merely results in the EEOC being told to “try again, this time with meaning.”

If nothing else, this case sends a strong message that courts favor resolution, not litigation.

Supreme Court to consider time limits for constructive discharge claims

Yesterday, the Supreme Court finished its Spring 2015 term with oral argument in Obergefell v. Hodges, the same-sex-marriage case. Earlier in the week, it added another case to its docket for its 2015 – 2016 term, agreeing to hear Green v. Donahoe, which asks the following question:

Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?

While this case is not as sexy as some other employment issues recently before the Court, it is nevertheless important. Under the federal employment discrimination statutes, an employee only has 300 days to file a charge of discrimination with the EEOC, which serves as the prerequisite to the filing of a later lawsuit in federal court. If the Supreme Court holds that the filing period begins to run at the employer’s last allegedly discriminatory act, then an employee who later resigns and claims constructive discharge will have a shorter window within which to file an administrative charge after the resignation.

Stay tuned, as this case will be heard towards the end of this year or early next year.

Asymptomatic HIV is a “disability,” no matter what one appellate court said

In Clayton v. Cleveland Clinic Foundation, an Ohio appellate court was faced with the issue of whether Ohio’s disability discrimination statute protects asymptomatic HIV as a “disability.” The court relied on the following exchange from the plaintiff’s deposition to conclude, wrongly, that the employee was not suffering from a protected disability.

Q. How does your HIV status impair you?

A. It doesn’t.

Q. All right. So you would say that it doesn’t substantially limit any of your activities of daily life?

A. No. Thank God. Praise him.

Q. When you were at the Cleveland Clinic Foundation, would you agree with me that you could perform all of your essential functions of being a housekeeper without any accommodations?

A. I was able to perform any duty without any accommodations.

Let’s start with the basics. Even before Congress amended the ADA in 2009 to liberalize the statute’s definition of “disability,” the law recognized and protected asymptomatic HIV as a disability. The United States Supreme Court said as much as far back as 1998, in Bragdon v. Abbott:

In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.

The Clayton court was not only wrong about whether HIV qualifies as a disability, but also on the interplay between a disability and a reasonable accommodation. One has a “disability” if one has a a physical or mental impairment that substantially limits a major life activity, period. For the ADA to further protect that individual on the basis of that disability, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. The determinations, however, are separate and distinct from each other. The essential function analysis has zero impact on whether one suffers from a protected disability as a threshold issue.

By conflating these two tests, this court set a dangerous precedent. Make no mistake, asymptomatic HIV is a disability. If an employee presents with HIV (or some other systemic illness), assume that the ADA covers the employee, and shift the analysis: 1) to ensure that the employee receives a reasonable accommodation if necessary to perform the essential function(s) of the job; and 2) to ensure that no one treats the employee differently because of the disability or some (mis)perception about the disability.

NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

WIRTW #365 (the “on the road again” edition)

It’s been a crazy week. I gave four different seminar presentations over an eight-day span:

• Last Wednesday I presented a two-hour FMLA/ADA update to the Southwest Safety Council.
• Monday evening I gave the keynote address at the Greater Cleveland Pest Control Association annual award banquet, scaring the pants off everyone about OSHA.
• Tuesday I presented a webinar on criminal background checks and Title VII
• Wednesday I opened the Northern Ohio Labor & Employment Conference with a discussion of emerging technology and employment law (i.e., BYOD, cyber-security, and social media).

Thanks to all who invited me to speak to your organizations. It is always my pleasure.

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

Discrimination

• 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo — via Dan Schwartz’s Connecticut Employment Law Blog
• For ADA and accommodating employee disabilities, think “Burger King” — via Eric Meyer’s The Employer Handbook Blog
• Why women are afraid to tell employers they’re pregnant — via Wonkblog
• Fired for What!? - The Great Popeye’s Fried Chicken Caper — via Phil Miles’s Lawffice Space
• Is Political Affiliation the New Black When it Comes to Discrimination? — via California Labor and Employment Defense Blog
• Is telecommuting a reasonable accommodation, or is it not? — via Robin Shea’s Employment & Labor Insider
• Telesh on EPLI’s Influence — via Workplace Prof Blog

Social Media & Workplace Technology

• If you’re horrible on the internet, Clear app could save your job — via The Verge
• Can an Employer Make Me Change My LinkedIn Photo? — via HR Examiner with John Sumser
• LinkedIn dodges a legal bullet — via Walter Olson’s Overlawyered
• The Dos and Don’ts of Work Email, from Emojis to Typos — via Harvard Business Review

HR & Employee Relations

• I walked in on employees having sex — and I think there’s a sex club in my office — via Ask a Manager
• Yelling at Co-Workers and Employees: Is It Ok? — via ERC’s HR insights Blog
• What Your Company’ Policy on Employee References? — via In House
• Is Thor an illegal immigrant? — via Law and the Multiverse
• How Commute Issues Can Dramatically Impact Employee Retention — via TLNT
• How to Build a Better Marijuana Policy — via Evil HR Lady, Suzanne Lucas
• Work Schedules are Damaging Lawyer Health — via Inhouse Blog
• Recovering From a Fraud Loss — via FRAUDfiles

Wage & Hour

• Do Lower Gasoline Prices Signal A New Wave Of FLSA Actions In The Energy Industry? — via Wage & Hour - Development & Highlights
• Docking Pay From Salaried, Exempt Employees Is Illegal…And Very Common — via Texas Employment Law Blog
• Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit” — via Employment Law Lookout
• “Half-Time” Overtime: The Fair Labor Standards Act’s Fluctuating Workweek Method — via Wage & Hour Insights
• Is Your Employee Abusing Her FMLA Leave? — via The Emplawyerologist

Labor Relations

• Are employer codes of conduct meaningless in today’s NLRB climate? — via HR Hero Line
• Rival Unions Vie For Position At VW — via Labor Relations Today
• NLRB vs. Right-to-Work — via Ross Runkel Report
• Union Isn’t Liable For Members’ Posts To Private Facebook Group–Weigand v. NLRB — via Technology & Marketing Law Blog
• NLRB Wants Postal Service to Bargain Over the Impact of Data Breach — via Employer Advocate

Until next week…

“Stop harassing me!” = protected conduct to support retaliation claim, says 6th Circuit

What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment) to support a retaliation claim? According to the 6th Circuit, in EEOC v. New Breed Logistics (4/22/15) [pdf], the answer is yes.

The jury concluded that Calhoun, a supervisor, sexually harassed three women (Hines, Pearson, and Pete), retaliated against them after they objected, and further retaliated against a male employee (Partee) “who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.” The evidence at trial was that Calhoun laughed and responded “that he wasn’t going to get in trouble, that he ran th[e] area, [and that] anybody who went to [HR] on him would be fired.” Calhoun then fired each of the four employees, claiming performance and attendance issues. 

As the threshold issue, the 6th Circuit had to determine whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The 6th Circuit had little difficulty concluding that these four employees had engaged in protected activity:

We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed…. Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations. Consistent with our holding today, these complaints constitute protected activity.

While I agree that this holding makes sense, consider the awful position in which it could place employers who are lax with their termination decisions. An employer is vicariously liable for the actions of a supervisor or manager (e.g., harassment or retaliation). Thus, an employer will be liable for the rogue actions of a harasser trying to protect his or her turf from an objecting employee.

The solution? More diligence and scrutiny of termination decisions by HR departments and senior management. One cannot merely rubber stamp a manager’s or supervisor’s decision to terminate. If that individual harbors a discriminatory animus, we know that the cat’s paw will nab you. Now, we also know, per New Breed Logistics, that retaliation liability has the same potential issues when an alleged harasser is involved.

Bottom line: Do not rubber stamp termination decisions. Fact-check and confirm before allowing the company to pull the trigger.