Is the glass ceiling self-imposed?

One blogger has theorized that the glass ceiling and the disparity in pay between men and women is self-imposed by women who prioritize motherhood over their careers. Tracy Coenen, on her Fraud Flies Blog, writes that workplace discrimination against women is largely a myth:

The problem here is clear, and it’s not a case of discrimination. It’s that women make choices which put them behind on the career path. I don’t begrudge any woman her right or her choice to have children. However, if she’s going to leave the workforce or reduce her role at work after having children, she can’t expect to keep up with her peer group.

Many say the choices women must make are difficult, as most don’t have a husband who is willing to stay home and perform the traditional role that a “housewife” used to in order that his wife may focus completely on her career. I don’t doubt that’s the case, but women still must be accountable for their own choices in partners, careers, and family life.

These false cries of “discrimination” upset me because when there are legitimate cases of discrimination, I think they are likely to be viewed more skeptically. Let’s use the word discrimination only when it’s really appropriate.

And for women in corporate America, let’s just acknowledge that not being paid as much as men or not attaining as many high-level positions as many is really related to career and family choices. I think our market is efficient, and works well to award pay at a level that is earned by the employee, regardless of gender.

I have to admit, It's an interesting theory, albeit one without any hard data to back it up. I'd like to think that in 2008, we have gotten beyond stereotyping women, minorities, the disabled, etc., and that all employment decisions are based on ability. Of course, that perception would be hopelessly naive. There are still lots of examples of women being passed over because of the family choices they have made.

Employees, regardless of gender, have the right to have a career and a family and not be punished for it. The balance for employers is not to confuse ability with dedication to job over all else. It's when businesses begin to equate performance deficiencies with an employee's family life that the specter of family responsibility discrimination begins to raise its troublesome head.

Governor seeks compromise to keep Healthy Families Act off the November ballot

Governor Strickland has spoken out against the Ohio Healthy Families Act as bad for Ohio businesses, but he is not necessarily opposed to to idea of paid sick days as a concept. Thus, he has been working with both Sick Days Ohio, the group sponsoring the OHFA, and business groups such as Northeast Ohio's Council of Smaller Enterprises (COSE) to forge a compromised bill and keep the OHFA off the November ballot. Governor Strickland is pushing what he calls "principles of sick leave," which are less specific than the current proposal. Regardless of any changes, however, the Cleveland Plain Dealer reports that COSE and other business interests may nevertheless oppose any sort of paid sick leave:

COSE, which represents nearly 17,000 small businesses in Greater Cleveland, is particularly opposed to the coalition's provision that would allow workers to take sick time in small increments. It says such time-keeping would be an administrative nightmare and would potentially disrupt time-sensitive manufacturing.

But eliminating that provision would not lessen COSE's overall opposition to the proposal. ...

COSE is working with the Ohio Chamber of Commerce and other business groups to oppose the ballot issue. They have formed the Ohioans to Protect Jobs and Fair Benefits coalition.

Millard said the coalition wants to raise $10 million for its campaign. He said he would rather see the money invested in job expansion and to help attract businesses but said the coalition has little choice.

Any compromise would have to be reached in the next two weeks. The coalition behind the OHFA has until August 6 to submit 120,000 valid voter signatures to qualify the proposal for the November 4 ballot, and is expected to hit that mark.

Given the philosophical differences between business and labor on this issue, I would be very surprised if the Governor is able to forge a compromise.

WIRTW #41

Another week, another week of excellent employment law posts from around the country for everyone to peruse.

The Delaware Employment Law Blog takes us back to HR Summer School in its second class on the FMLA, this time covering the meaning of a serious health condition.

Ohio Practical Business Law gives us a primer on non-compete agreements under Ohio law.

The Connecticut Employment Law Blog, meanwhile, teaches us about the WARN Act and what companies must do in mass layoffs and plant closures so as not to run afoul of it.

The Pennsylvania Labor & Employment Blog talks about investigating employee misconduct through the surveillance of data.

Finally, Fair Labor Standards Act Law tells us how to properly structure unpaid internships so they don't violate the FLSA.

The federal minimum wage rises, but does anyone in Ohio care?

Today, the federal minimum wage increases to $6.55 an hour. This should be bigger news than it is, but in Ohio this increase will have almost no impact at all. Thanks to 2006's minimum wage ballot initiative, Ohio's minimum wage in already $7.00 an hour. So, file this information away as interesting trivia, and know that Ohio already outpaces the federal government by $.45 an hour.

Don't estop yourself into coverage

Lots of statutes have thresholds that must be met for coverage. For example, the FMLA only applies to employees with at least 1 year of tenure who worked at least 1,250 hours in the preceding year for an employer with 50 or more employees. As Peters v. Gilead Sciences (7th Cir. 7/14/08) illustrates, those thresholds are not the only way an employee can be covered.

There was no dispute that Peters was not eligible for statutory FMLA leave. Nevertheless, at the outset of his medical leave of absence, Gilead sent him a letter stating that "all employees" were eligible. Gilead's employee handbook makes a similar promise of 12 weeks of medical leave. Because of those representations, Peters might be eligible for medical leave under a promissory estoppel theory, and it may have been illegal for Gilead to replace him while on such leave:

Gilead’s handbook does not exclude any employees from the entitlement to 12 weeks of family and medical leave except those who do not meet the basic prerequisites of 12 months’ employment with the company and 1,250 hours of work in the preceding 12 months. There is no reason employers cannot offer FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA .... and that is what Gilead did. Peters’ statutory ineligibility is irrelevant....

In other words, because Gilead promised leave, Peters was entitled to rely on that promise and enforce it to the extent that he relied on it to his detriment.

There are two critical lessons for employers to take away from this case:

1. Triple-check employee handbooks for appropriate disclaimers. The key to a promissory estoppel claim is that any detrimental reliance was reasonable. A disclaimer in a handbook that tells employees that the handbook is not a contract but a general statement of company policy, that the company has the ability to modify such policy at any time, and that employees are not to rely upon anything in the handbook as binding on the company, would go a long way to showing that an employee's reliance was not reasonable.
2. Be careful what you tell employees. The handbook notwithstanding, if you represent to an employee that s/he is entitled to a benefit (such as FMLA leave) you better be prepared to stand behind that statement and live up to everything that goes along with it. Before you tell an employee that s/he is covered by the FMLA, it is best to check whether that statement is accurate. That checking may require a 15 minute phone call to your employment counsel. That 15 minute phone call, however, could save your company 2 years of litigation hell.

EEOC issues new guidance on religious discrimination

This week, the EEOC issued three new publications on religious discrimination: a new chapter in its Compliance Manual, a Q&A, and Best Practices for Eradicating Religious Discrimination in the Workplace. While these documents are not binding, and a court is free to interpret Title VII as it sees fit, it is always good to know how the EEOC views the workplace discrimination landscape.

The Best Practices will prove to be the most helpful for employers. It's not earth shattering, but does give businesses a helpful synopsis of standards that will help minimize liability, such as:

• Carefully and timely recording the accurate business reasons for disciplinary or performance-related actions.
• Ensuring that an anti-harassment policy covers religious harassment.
• Training managers and supervisors on how to recognize religious accommodation requests from employees, and developing internal procedures for processing religious accommodation requests.
• Making an individualized decision instead of one based on stereotypes in determining whether a request for an accommodation poses an undue hardship

[Hat tip: Connecticut Employment Law Blog and Manpower Employment Blawg]

Illustrating the dangers of the Healthy Families Act to Ohio

Yesterday, a commenter left the following on my earlier post, Deconstructing the Ohio Healthy Families Act:

What effect will this have on attracting new business to Ohio? Just the administrative burden alone is formidable, let alone the potential costs. If I have the responsibility of choosing between building a new plant in Ohio, which has the mandated 7 paid sick days, or another state which doesn't have such a provision, I would have to have a lot of other positives to the Ohio location.

This comment underscores just how critical it is to defeat this measure in  November. Ohio is at an economic crossroads, and yet we have the opportunity to bring our state forward into the 21st century. That opportunity includes a burgeoning bio-medical industry to work in tandem with our outstanding hospital systems, and Governor Strickland's efforts to lure so-called "green" companies to Ohio to help develop alternate fuel sources. Enacting legislation that will create labor costs to do business in Ohio that do not exist in any other state is not the way to go about curing our state's ills. We need incentives for companies to settle in Ohio, not incentives for them to look elsewhere and leave.

The OHFA is a wolf in sheep's clothing. Ohioans going to the polls in November will be drawn to vote in its favor because people think that they want paid time off. If there are no jobs left in Ohio because this measure passes, what good will it do?

Some employees should just sail off into the sunset

Every once in a while, you come across a case that, when you read it, makes you wonder why the employee would ever even consider filing a lawsuit. Maurer v. Franklin County Treasurer (Franklin Cty. 7/10/08) is one such case. Chris Maurer was a tax collector in the Delinquent Tax Division of the Franklin County, Ohio, Treasurer's Office. His employer assigned him to work at its booth at the Reynoldsburg Tomato Festival. The County's booth was next to the booth for the Catalyst Church. Manning the Catalyst Church booth were two women in their early 20s, Faith and Jennifer Thoms. The opinion describes what happened:

While Faith was engaged in play with some children, [Maurer] came to the church booth and sat in one of the chairs. [Maurer] began playing with the bubble gun that was there for children's entertainment and, as a result, the liquid or bubbles from the gun spilled onto his hands and a map he had. [Maurer] went to Faith and wiped them on her thigh. After calling Faith's sister-in-law Jennifer to him, he wiped the map on Jennifer's thigh and on her skirt; she told him to stop. The two women attempted to resume their activities, but [Maurer] again called Jennifer over to him. He put his hand up the side of her above-the-knee skirt and then wiped his soapy hands down her thigh and her calf. Faith intervened, standing between them while she answered a phone call, and told him to stop. Meanwhile, the woman Jennifer had been speaking with walked away after witnessing [Maurer's] actions. During his time at their booth, [Maurer] repeatedly talked about wanting a massage and inquired who would give him one.

Ultimately, [Maurer] got up from the chair in the church's booth to put candy wrappers in the trash, and both women sat in the chairs so appellant could no longer occupy them. [Maurer] co-worker, Billie Grier, was not present during the incident, as [Maurer] had sent her out of the booth area for various reasons. When Grier returned, Jennifer and Faith told her to tell [Maurer] they were underage so he would leave them alone. Grier advised that supplying [Maurer] with such information probably would not help, as women in the office did not trust him with their teenage daughters.

Jennifer reported the incident to the Treasurer's Office, which conducted an investigation, and, after a hearing terminated Maurer's employment for "immoral conduct, discourteous treatment of the public, mistreatment of the public and sexual harassment."Not surprisingly, the court upheld the termination decision.

Too often, I write about cases in which employers did the wrong thing, either in making the decision to terminate an employee or in not properly investigating a harassment complaint. This case provides a good illustration of an employer that did everything right. It received a complaint of inappropriate conduct by an employee, promptly and thoroughly investigated, and terminated his employment.

This case also teaches a broader lesson. No termination is bulletproof. Even the most rock-solid termination can result in a lawsuit by a disgruntled employee. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons.

WIRTW #40

Actually, I'm not reading much this week, but I have pegged a few articles that might be of interest to everyone.

First, congratulations to Michael Fox. His Jottings By An Employer's Lawyer, the granddaddy of employment law blogs, celebrated its 6th anniversary this week. In honor of this milestone, he has graciously published a list of his colleagues around the country who have jumped on the employment law blogging bandwagon since he started.

The Delaware Employment Law Blog takes us to school with a great FMLA hypothetical spun out of Brad and Angelina's twins.

BLR's HR Daily Advisor asks whether employers have a duty to accommodate employees' alcoholism.

Finally, the Connecticut Employment Law Blog calls out the PC police on the term "intellectual disability," and asks what's wrong with good old fashioned "mental retardation." It's a valid question, but with the times, acceptable lingo changes. Just as it's no longer in vogue to refer to black people as "colored," our refined sensibilities have called into question some of the terminology we use to refer to the disabled.

Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim

Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:

Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.

The lessons to take away from this case are several:

1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Ohioans to Protect Jobs and Fair Benefits vows to fight against Healthy Families Act

Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses, organizations, and others  that oppose the Healthy Families Act, has formally launched its campaign to defeat the November ballot initiative. It calls the sick leave mandate a "job killer" for Ohio, and has just issued the following news release:

Opponents of the union-backed mandated sick leave proposal today announced formation of a campaign committee to defeat the proposal, labeling it “a job-killer” that threatens Ohio’s economy at a time when it is already reeling.

The committee, representing a broad coalition of individual employers, trade associations and businesses organizations, said it intends to educate voters about the devastating effects the proposed state mandate will have on individual employers, their workers and the Ohio economy.

“Few people in Ohio are against sick leave,” said John C. Mahaney, Jr., treasurer of Ohioans to Protect Jobs and Fair Benefits. “But Ohio’s struggling businesses – particularly our small businesses – can’t withstand provisions in this proposal that threaten pay, benefits and jobs.”

“To make things worse, the proposal also severely penalizes employers who already provide sick leave by imposing rules that will make it much more expensive to operate assembly lines and facilities like hospitals and nursing homes,“ Mahaney added.

Mahaney said the mandate will brand Ohio as a “job-killer” in the eyes of businesses nationwide at a time when the state is in desperate need of new jobs.

“This proposal will make Ohio the only state in the union with a mandated paid sick leave law,” he said. “It will significantly drive up the cost of doing business when we can least afford it, and it will kill our job-development efforts.”

The provision that worries employers who currently grant sick leave is one that allows employees to take sick leave without warning in one-hour increments or less. Mahaney said such a provision poses a serious threat to production stability at process-dependent employers like assembly line manufacturers and staffing-critical operations like hospitals, nursing homes and day-care facilities.

“Companies like Honda, Ford, General Motors, Chrysler, Whirlpool and others have long-standing agreements that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production,” he said. “This proposal directly interferes with long-established employer-employee relationships and the production stability achieved over many years of working together.”

Employers of every size worry that the cost to implement the mandate would require them to make up the difference by taking money from other benefits such as health care, curtailing raises or even cutting jobs, Mahaney said.

Ohioans to Protect Jobs and Fair Benefits promised a vigorous grassroots campaign in all 88 Ohio counties to defeat the proposal in November.

Ohio is suffering through its worst economic period in 20 years. This issue will make us one of the most business-unfriendly states in the country. With our nation's economy at a crossroads, Ohio's working people simply cannot afford our state to be branded a "job-killer."

If you want to get involved in this grassroots campaign, if you want to know how your business or organization can sign up as a supporter of Ohioans to Protect Jobs and Fair Benefits, or if you simply want more information on the dangers that the Healthy Families Act presents to Ohio, please contact me:

Jon Hyman - jth@kjk.com - 216-736-7226

Duty to reasonably accommodate obvious disabilities

Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

Dads get FMLA leave too

Even though new dads have the same FMLA rights as new moms, technically I'm not on FMLA leave. I'll be in and out of the office over the next several weeks as we get acclimated to our new family member. New parents don't qualify for intermittent leave:

(a) Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

Donovan Joseph Hyman was born at 12:42 yesterday, 7 pounds, 6 ounces, and 18.25 inches. And, not that I'm biased, but he's the best looking baby in the nursery.

WIRTW #39

Starting Monday, my posting may become more sporadic than I'd like, as my wife is going into the hospital to have our second child. I'll be taking care of my family responsibilities for a couple of weeks before I return to the office full time. I hope to do my best to keep posting, but it's all dependent on sleep patterns and how cooperative my normally very cooperative two-year-old wants to be. So bear with me, and I'll be back to regular postings later this month.

In the meantime, enjoy this week's best posts from other blogs.

The Delaware Employment Law Blog is taking everyone to HR Summer School by posting a series of "Back-to-Basics" articles on the 3 toughest employment laws - the ADA, the FMLA, and the FLSA. This week's lesson - What Does the ADA Require?

The Connecticut Employment Law Blog touches on a topic that I've covered before, that the presence of absence of fair treatment has a lot to do with whether an employee will sue you. For my thoughts on this issue, take a look at The Golden Rule of Employment Relations.

The Workplace Privacy Counsel lets us know about Sidell v. Structured Settlement Investments, recently filed in Connecticut, which will decide the limits on an employer's access, using its own computer equipment, to an employee's e-mail stored in an employee's personal e-mail account.

Case in point, the ABA Journal brings us the story of Philadelphia television news anchor Larry Mendte, fired for installing key stroke monitoring software on a station computer, which enabled him to access the private email account of his co-anchor, Alycia Lane. Philly.com has tons more on this bizarre story, including Lane's e-mailing of bikini photos of herself to NFL Network anchor Rich Eisen, who is married, her subsequent termination for allegedly assaulting a New York City cop, and the wrongful discharge lawsuit she has filed.

Electronic Discovery Navigator predicts that the added mobile technology made necessary by telecommuting will present an electronic discovery nightmare.

The Workplace Prof Blog lists 5 lifestyle choices that could cost an employee his or her job.

A lesson in union avoidance

No company does more to avoid unions than Walmart. Case in point - Wal-Mart Stores Inc. (NLRB 6/20/08). In the summer of 2000, Walmart's Kingman, Arizona, Tire and Lube Express (TLE) employees contacted United Food and Commercial Workers. The Union filed a representation petition on August 28. Two days later, a labor relations team from Walmart's corporate headquarters arrived at the store. During the organizing campaign, members of that labor relations team did such things as: threaten to postpone any merit pay increases for the TLE employees during any contract negotiations; engage in surveillance of employees' union activities; grant benefits and improved working conditions to discourage employees from supporting the Union; discriminatorily and disparately apply and enforce its no-harassment policies to the detriment of employees who supported the Union; and discharge and deny COBRA coverage to employees for supporting the Union.

It is not much of a surprise that the NLRB found that Walmart engaged in unfair labor practices. The point, however, is not whether Walmart violated the NLRA, but in how Walmart handled the litigation. The organizing campaign started in August 2000. The NLRB issued its final decision and remedial order nearly 8 years later. And that timeline does not include any appeals to federal court, which will add at least another 12 - 18 months. Does anyone doubt for a second that Walmart's strategy is to drag this process out as long as possible, making it as costly, difficult, and time consuming for the union and its members? Does anyone want to wage a bet on how long it will take Walmart to actually sit down and bargain with this union? By the time Walmart has exhausted all of its appeals on every claim the Union could possibly bring, will any of the original LTE employees be left at the store? If not, how can the Union say a majority of the bargaining unit even wants a union? The de-certification petition will surely follow.

The lesson from this case is that a successful organizing campaign is not necessarily the end game for a unionized workforce. The laws might be tilted towards the unions, but for companies that have the resources and the patience, the process can be used to their advantage to ultimately break the union.

Ohio Supreme Court takes a stand against liability for bullying (sort of)

Fontella Harper and Beverly Kaisk were neighbors in a public housing project. Apparently, Kaisk had problems living next door to an African American family, and let them know about it, frequently and offensively. Harper complained to building management, who took no corrective action. Kaisk's lease included a provision requiring tenants to conduct themselves in a manner that "will not disturb the neighbors' peaceful enjoyment of their accommodations," and the landlord could have terminated the lease "for serious or repeated violations of material terms of the lease."

Harper sued the landlord for housing discrimination based its failure to take corrective action of the racial harassment. Yesterday, in Ohio Civil Rights Commission v. Akron Metropolitan Housing Auth., the Ohio Supreme Court held that a landlord is not liable for failing to take corrective action against a tenant whose racial harassment of another tenant created a hostile housing environment.

You might be asking, what does a housing discrimination case have to do with employment law? The plaintiff argued that a landlord should be liable for a hostile environment on the same basis that an employer can be held liable. The Court disagreed:

[I]mposing liability on an employer who knew or should have known about coworker harassment was an application of negligence liability....This liability of an employer for an employee's negligence derives from the established principles of agency law.... None of those factors apply to the liability of a landlord for the actions of a tenant. The agency principles that govern employer-employee liability have no parallel in the context of landlord-tenant disputes....

The amount of control that a landlord exercises over his tenant is not comparable to that which an employer exercises over his employee. As the appellants observe, a landlord does enjoy a measure of control through his ability to evict tenants. In the present case, the lease signed by Kaisk gives the AMHA authority to evict a tenant who disturbs other tenants' "peaceful enjoyment of their accommodations." The power of eviction alone, however, is insufficient to hold a landlord liable for his tenant's tortious actions against another tenant.... We therefore reject the argument that our precedent in the employment context applies to the cause of action at issue here.

It's not earth-shattering news that agency principles hold employers liable for discriminatory (e.g., sexual, racial, etc.) harassment of one co-worker by another. This case, however, also speaks to the Court's unwillingness to extend harassment liability beyond the current parameters of the law. The Court could have reasoned a duty to correct from the power to evict, and from that duty fashioned a remedy for the harassed tenant. The Court, though, expressly rejected that argument.

For those who hold out hope that Ohio courts might recognize a general cause of action for workplace bullying, this opinion is a strong signal that our state's highest court would reject such an attempt.

Medical questions during job interview doom employer in discrimination case

Doe v. Salvation Army, decided last week by the 6th Circuit, provides employers with a valuable lesson on the dangers of asking the wrong question during a job interview.

Doe (whose proceeded pseudonymously to protect his confidentiality) had a history of paranoid schizophrenia. During a job interview with the Salvation Army, Doe was told of the requirements for the job, including the expected work days. Doe advised that he could not work on Fridays because, "[he] had to see [his] doctor, and . . . pick up [his] medicine." Doe claims that the interviewer asked him in response, "what kind of medication," to which Doe responded "psychotropic medicine." Doe claims the interviewer then ended the meeting and Doe was ultimately rejected for the job.

The Salvation Army argued, and the district court agreed, that Doe was rejected for safety concerns, not for reasons solely based on his disability. The 6th Circuit, however, found there to be a genuine issue of material fact as to whether the decision not to hire Doe was based solely on his disability:

It was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, "I did not say flat out no," but rather, "I'll have to check [the insurance] out." As we now know, he did not do so.

An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. The district court stated that "[c]ourts have unanimously held that an individual with a disability 'cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.'" But in May 2005, Snider ended Doe's interview not because he concluded that Doe's employment as a driver would pose a risk to others, but because Snider "wasn't going to take a chance" on Doe.

The Salvation Army got in trouble because it sought the wrong information in the wrong way. The employer provided legitimate information - the required work hours - an essential function of the job. Unprompted, Doe then voluntarily disclosed medical information. At that point, the interviewer should have simply confirmed that Doe could not meet that particular essential requirement and moved on to a different topic. At that point the company could have rejected Doe based on his inability to work the required hours, a decision that would not have been tainted by the inappropriate follow-up question, "What kind of medicine?"

6th Circuit decides standard of proof for mixed motive cases

Disparate treatment claims under Title VII are categorized as either single-motive claims (where only an illegitimate reason motivated the employment decision), or mixed-motive claims (where both legitimate and illegitimate reasons motivated the decision). Mixed-motive claims are specifically covered in 42 U.S.C. 2000e-2(m): "An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
In Desert Palace v. Costa, the U.S. Supreme Court found that a plaintiff may prove a Title VII mixed-motive case by either direct or circumstantial evidence, and held that to obtain a mixed-motive jury instruction, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" The opinion left open the issue of whether the McDonnell Douglas burden-shifting framework should apply to a summary judgment analysis of mixed-motive discrimination claims based on circumstantial evidence as it applies to single-motive discrimination claims based on indirect evidence.
Since Desert Palace, the 6th Circuit has been silent on the issue of the proper evidentiary framework to apply to mixed-motive cases at the summary judgment stage. Some circuits have expressly applied the McDonnell Douglas analysis, some have applied a modified McDonnell Douglas approach, under with a plaintiff can rebut the employer's legitimate non-discriminatory reason either with evidence of pretext or evidence of the mixed motive.Yet another approach is to permit the plaintiff to rebut the employer's legitimate non-discriminatory reason with evidence that a discriminatory reason more likely than not motivated the decision.
In White v. Baxter Healthcare Corp., decided last week, the 6th Circuit finally weighed in on this issue:

The McDonnell Douglas / Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims. We likewise hold that to survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) "race, color, religion, sex, or national origin was a motivating factor" for the defendant’s adverse employment action.... This burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.

The Court, however, did not totally dismiss any applicability of McDonnell Douglas to mixed-motive cases:

Although the employee need not establish a McDonnell Douglas prima facie case to defeat a motion for summary judgment on a mixed-motive claim, setting forth a prima facie case of discrimination under McDonnell Douglas can aid the employee in showing that an illegitimate reason motivated the adverse employment decision. [Likewise, in] assessing whether an employee has demonstrated that an illegitimate reason was a motivating factor in the employer’s adverse decision, the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision. (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 720 (6th Cir. 2006) (Moore, J., concurring)).

Thus, to survive summary judgment in a mixed-motive case, the plaintiff need only show:

1. an adverse action, and
2. some evidence that the protected class was a motivating factor for that adverse action.

This burden is low, and will likely make it much easier for plaintiffs in the 6th Circuit (and most likely Ohio state courts, which follow 6th Circuit precedent) to defeat summary judgment in a mixed-motive case. It will also create an incentive for employees to frame their cases as mixed-motive cases, because these cases will be more likely to go to a jury under this standard than single-motive cases under the traditional McDonnell Douglas standard.

46.6 million reasons to think about settlement

In the largest verdict Ohio history, and what might be the largest single-plaintiff employment verdict ever, a Cuyahoga County jury has awarded $46.6 million to Ronald Luri against garbage hauler Republic Services. Cleveland.com reports that Luri was fired after he refused to fire three employees in their 60s. The jurors reported that they were outraged by Republic's conduct after it fired Luri: "The jurors said the key piece of evidence was an email penned by Luri's boss, Jim Bowen, the Ohio area president. Attorneys Shannon Polk and Richard Haber presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of Luri's job performance two weeks after Luri filed the lawsuit."

There are many lessons to be learned from this story, but none more important than this - companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on the verdict. Of the 8 total jurors, it is a sure bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind.

Secondly, as far as employers are concerned, an employee's performance history must be frozen in time as of that employee's termination date. Nothing will anger a jury more than a company that looks like it is trying to cover its actions, either by destroying damaging documents or creating helpful ones. The shenanigans the jury found to have taken place after Mr. Luri was fired was a significant factor in the verdict, and if his personnel file was frozen on his termination date, I predict that the verdict would have looked much different.

Unsurprisingly, it is reported that Republic will likely appeal the verdict. Regardless of how much of the $46 million holds up, employers should use this information as a wake up call. Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day.

What I'm reading this week #38

I'm here a day early with this week's best from the blogosphere, starting with 2 posts from the New York Times' Shifting Careers series: Blogging About Layoffs, the Legal Implications, and Can Ex-Bosses Object When Ex-Employees Start Businesses?

The FLSA Blog has an interesting post on crisis planning for class action lawsuits.

The Delaware Employment Law Blog writes on a topic of the utmost importance to everyone this time of year - the office thermostat.

The Connecticut Employment Law Blog, meanwhile, reminds everyone of the important distinctions between hostile work environment and quid pro quo sex harassment claims.

The Pennsylvania Labor & Employment Blog opines that the Supreme Court's D.C. gun ban decision should have little impact on employers.

Finally, the Laconic Law Blog points everyone to the new I-9 form that employers must use beginning July 1. The only difference is its effective date; otherwise the form is unchanged.

Everyone have a fun and safe July 4th weekend, and I'll see everyone back on Monday.