WIRTW #231 (the “Obama <3 Roberts” edition)

Yesterday was the most anticipated day at the U.S. Supreme Court in quite some time. The Court handed down its opinion in National Federation of Independent Business v. Sebelius, which decided the constitutionality of the Affordable Care Act. And, Obamacare is alive and kicking. Here’s SCOTUSblog’s very tweetable summary of the historic opinion:

The key quote from the majority opinion, written by Chief Justice Roberts:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

In other words, the “mandate” to buy health insurance isn’t really a mandate at all, because individuals can simply refuse to buy health insurance and pay the resulting tax.

Here’s the entire 59-page opinion “in plain English,” again via SCOTUSblog (which gets huge props for its amazing live coverage):

If have a few spare moments and want to seek your teeth into the opinion, you can download all 187 pages here.

Or, you can read some summaries and commentaries from around the web:

• Health-Care Ruling: A Scorecard — from WSJ.com: Law Blog
• Don’t call it a mandate—it’s a tax — from SCOTUSblog
• What The Health Care Decision Means for Your Small Business — from WSJ.com: Small Business
• Supreme Court Upholds Individual Health Insurance Mandate — from SHRM
• Obamacare Decision: The Perils of Instant Analysis and Related Thoughts — from Michael Fox’s Jottings By An Employer’s Lawyer
• Social media angle on SCOTUS healtcare decision — from Internet Cases
• Ouch! CNN, Fox News Flub Coverage of Supreme Court’s Health Care Ruling — from TVLine

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

Discrimination

• Say what? — from Walter Olson’s Overlawyered
• Is Breastfeeding Bias the EEOC’s Next Battleground? — from Employer Defense Law Blog
• Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business — from Troutman Sanders HR Law Matters
• Banana-based racial harassment claim goes to trial — from Warren & Associates Blog
• Strippers Have Rights Too — from Donna Ballman’s Screw You Guys, I’m Going Home
• Fired for Reporting Workplace Injury — from The Proactive Employer Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Much Ado about Nothing? — from i-Sight Investigation Software Blog
• Facebook Use At Work Falls, Twitter Is On The Rise — from The Huffington Post
• NBC Stations Keep Tabs On Employee Tweets — from TVNewsCheck
• What Not to Share: Enterprise Social Networking Etiquette — from The Up Mover
• ‘We Know What You’re Doing’ website outs drug users, boss-haters and more on Facebook — from BGR
• Is Your Co-worker Reading E-books On Company Time? — from Workplace Diva
• Employers Can Use Apps to Track Employees — But Is It a Good Idea? — from HR Hero’s Technology for HR Blog
• Pew survey finds that 17 percent of US cellphone users go online mostly on their phones — from Engadget Mobile
• Pinterest Legal Concerns: What is Lawful to Pin? — from Social Media Today

HR & Employee Relations

• Should you tell a job candidate about her body odor? — from Evil HR Lady, Suzanne Lucas
• Policies and User Adoption — from HR Examiner with John Sumser
• Workplace Investigation Pitfall: Failure to Use the Matter as an Opportunity to Improve the Organization and its Employee Relations Practices — from Strategic HR Lawyer
• Employer customer lists: "Whatever you say, dude." — from Eric Meyer’s The Employer Handbook Blog
• Legal Issues and Benefits to Employers for Employing Military Personnel — from Jason Shinn’s Michigan Employment Law Advisor
• Poll: Social Life, Not Social Media, Is Work's Biggest Distraction — from Workforce
• Employers to workers: Shape up, quit smoking — from Eve Tahmincioglu at Life Inc. on Today.com

Wage & Hour

• A work-life balance audit for employers — from Robin Shea’s Employment and Labor Insider
• Supreme Court To Decide Whether Employers Can “Moot” Collective Action — from Wage & Hour Tips
• SCOTUS Grants Cert in ERISA Case — from Phil Miles’s Lawffice Space

Labor Relations

• OMG! DUST NLRB Using Tech 2 Reach PPL re: PCA? UNTCO — from Dan Schwartz’s Connecticut Employment Law Blog
• 6th Circuit Holds Substantial Evidence Supports NLRB’s Conclusion That Charge Nurses Were Not Supervisors — from Wisconsin Employment & Labor Law Blog

Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Did the 6th Circuit just approve a claim for benign discrimination?

In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12) [pdf], a demoted and transferred custodian sued his employer for age and race discrimination. At trial, the jury returned the following special verdict:

The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that he was treated differently because of his race. Under the McDonnell Douglas burden-shifting framework, the lack of an adverse action should dispose of the case. If one cannot show a prima facie case (which includes the suffering of an adverse action), the ultimate issue of discrimination should never be reached.

The 6th Circuit, however, disagreed. It disregarded the jury’s finding on the existence of an adverse action as irrelevant to its subsequent finding on the ultimate issue of whether discrimination occurred:

The jury’s assessment of Litton’s prima facie case did not control its finding on the ultimate question of discrimination…. he district court was not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.

As I read the opinion in Litton, I mapped out in my head a grand critique. Then I read Judge Batchelder’s dissent, and decided I couldn’t say it any better:

The core problem with the majority’s holding is that it treats the question of whether Litton suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.” The two are one…. Title VII does not ban mere discrimination, but only adverse discrimination…. It is, to me, beyond obvious that Title VII applies only where there has been discrimination against an individual. That requirement is not merely some vestigial prima facie element that fades into the background as the case progresses—it is at the heart of the claim itself….

In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” … The majority should not relieve Litton of his burden, and it certainly should not grant him victory in the face of a jury verdict finding that he never proved that he suffered adverse discrimination at all. The whole purpose of Title VII … is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.

Did the 6th Circuit unwittingly create a cause of action for benign discrimination? Or, is this case an anomaly that future courts will distinguish and disregard? Common sense mandates the latter. Right?

Will the Supreme Court (re)define employer liability for harassment by supervisors? Vance v. Ball St. Univ.

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard.

Yesterday, the U.S. Supreme Court agreed to hear the appeal of this case. The Court will decided the following two-part issue:

Whether the “supervisor” liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is “an important and recurring issue of federal law.” In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit’s opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer’s liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

[Hat tip: Phil Miles’s Lawffice Space]

Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.

WIRTW #230 (the “2012 tour” edition)

I’m taking my act on the road. I have a slew of speaking engagements lined up between now and the end of the year. Let me know if you’re planning on attending any of these so that we can connect.

• Employees Online: Social Media at Work — Business Management Daily Webinar, July 11, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — Ashtabula Chamber of Commerce, July 26, 2012
• Employee Leave Rights and Employer Obligations — Ohio Chamber of Commerce HR Academy, September 12, 2012
• Employment Law in the Information Age: Best Practices for Employers — 7th Annual National Employment Practices Liability ExecuSummit, October 1, 2012
• Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace — GSMI HR Compliance Conference, October 16, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — COSE Small Business Conference, October 25, 2012

You can now keep track of all of my past and upcoming gigs at the brand new “Speaking Engagements” tab on the toolbar at the top.

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

Discrimination

• REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See… — from The HR Capitalist, Kris Dunn
• Internal Probe Participation Triggers Title VII Protection, Court Holds — from Joe’s HR and Benefits Blog
• A Few Thoughts on “Ageism” in the Workplace — from New Jersey Employment Law Blog
• The EEOC Contends Lactation Is Covered by Title VII — from Hunton Employment & Labor Law Perspectives™
• HELP WANTED: Born-again Christians need only apply — from Eric Meyer’s The Employer Handbook Blog
• Fathers Take Employers to Court for Discrimination — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• Employers Can Use Apps to Track Employees—But Is It a Good Idea? — from Technology for HR
• Can I Protect My Trade Secrets Via Social Media Policy? — from Trade Secrets & Non-Compete Blog
• Juror Misconduct & Bias - Social Media Investigation — from From the Sidebar
• 20 Awesome Facts About Twitter – 2012 Edition — from Social Media for Law Firms

HR & Employee Relations

• Are You Ready For Take Your Dog To Work Day? — from Workplace Diva
• Chaucer, the Prioress, her Lip, and your Employee Handbook — from A Maryland Employment Lawyer Speaks
• Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you’re sorry — from Robin Shea’s Employment and Labor Insider
• Summertime is Here: Don’t Be A Victim of Background Check Shrinkage — from Nick Fishman’s employeescreenIQ Blog
• Performance Evaluations: Let’s Talk About It — from Molly DiBianca’s Delaware Employment Law Blog
• Pull Up Your SOX: The New Whistleblowing Claim Grows Up — from Dan Schwartz’s Connecticut Employment Law Blog
• The top 10 harassment excuses … and how to see through them — from Business Management Daily

Wage & Hour

• The DOL at Your Door – What Do You Do Now? — from Mike Haberman’s Omega HR Solutions
• “The new workplace revolution: wage and hour suits” — from Walter Olson’s Overlawyered
• Function Over Form: The Supreme Court’s Realistic View of the FLSA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Do Hours Worked On A Second Job Count Toward Overtime? — from Wage & Hour Insights
• Wage Theft On The Rise — from Overtime Lawyer Blog
• Tenth Circuit dismisses claim by employee who was fired while on FMLA leave — from EmployerLINC
• Family and Medical Leave Act Webinar and Employee Guide — from Laconic Law Blog

Labor Relations

• Does Your Compensation Policy Violate NLRA? — from Stephanie Thomas at Compensation Cafe
• U.S. Unions: Uncivil On Civil Rights — from Forbes
• State Of The Unions: Labor And The Middle Class — from NPR’s All Things Considered

6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.