UPS Delivers Cautionary Tale 2017-08-08T14:56:42-06:00

Posted on August 8, 2017

Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued “guidance” reminding employers that it views maximum leave policies as a violation of the ADA. Last week the EEOC settled a long-running case with UPS involving maximum leave policies. The EEOC’s lawsuit, filed in 2009, claimed that UPS’s maximum leave policy discriminated against disabled workers because it left no room for accommodation upon expiration of twelve months leave. Under the settlement, UPS agreed to pay $1.7 million to a class of workers and to create new mechanisms within the entire organization to ensure a prior legal review of any termination of an employee who has reached the end of a medical leave. Whether the EEOC is right or wrong on maximum leave policies under the ADA, it clearly litigates to enforce its position. Employers are wise to look at their leave policies to ensure they do not run afoul of the EEOC’s interpretation of the ADA.

Don’t Quarrel Over Scripture 2017-06-13T10:30:04-06:00

Posted on June 13, 2017

By Bill Wright

The Fourth Circuit Court of Appeals recently upheld a jury verdict in favor of the EEOC in a Title VII religious discrimination claim. At issue was the use of a biometric scanner as a time clock. EEOC v. Consol Energy, Inc. et al., No. 16-1406 (4^th Cir. June 12, 2017) The employee objected that allowing the company to scan his hand – either hand – would result in his receiving the Mark of the Beast. (See Revelation 13:16-17.) The company provided the employee with a prepared interpretation of the Book of Revelation from the manufacturer of the biometric device. The manufacturer explained (1) the device left no mark, or “Mark,” and (2) employees could safely use their left hands as the Beast would Mark only a person’s right hand or forehead. The company therefore insisted that the employee scan his left hand. Oh, of course, employees with injured hands could just input their employee number, but the company did not offer – in an internal email, actually refused – to offer this accommodation to the religious dissenter. The company threatened discipline if he did not scan one hand or the other; and the employee resigned under protest.

Apparently the scriptural disagreement and evidence related to constructive discharge were the main themes of the trial. There was no disagreement over the sincerity of the employee’s belief, only over whether he was right.

It seems elementary, but a U.S. court is not going to rule, or instruct a jury to determine, authoritative interpretations of scripture. As an employer, don’t get into a dispute of biblical proportions over a simple timekeeping accommodation. If it had been anything more than de minimis, Title VII would not have required the employer to provide the accommodation.

Spell Out Interview Results 2017-05-12T10:53:06-06:00

Posted on May 12, 2017

By Bill Wright

An employer in Mississippi will face trial on a claim of race discrimination because it has not explained the interview scores two candidates received. In Calvin v. MS Dept. Rehab. Servs., Civil No. 3:15-CV-827-HTW-LRA (S.D. Miss. May 4, 2017), the plaintiff claimed he was denied a promotion because of his race. He claimed he had more relevant experience than the Caucasian candidate; the employer asserted that the other candidate had scored better in the interviews and that the plaintiff could not prove otherwise. On the employer’s motion for summary judgment, the court ruled that the employer had not articulated a non-discriminatory reason for the employment action, because the employer had not explained the interview scores. The plaintiff also contended the questions themselves were designed to favor the other candidate, without regard for the duties of the position at stake.

The case is a warning for all employers. Having an “interview” does not cover underlying discrimination. Consider the job-relatedness of the questions and train the interviewers on scoring.

Suspension Not Materially Adverse 2017-04-12T12:51:12-06:00

Posted on April 12, 2017

By Bill Wright

A retaliation claim under Title VII requires proof of a “materially adverse action.” Short of discharge, what could be more materially adverse than a suspension? The Fifth Circuit Court recently ruled that even a suspension is not always materially adverse. The plaintiff will have to show that the suspension caused “physical, emotional, and economic burdens.” Cabral v. Brennan, No. 16-50661 (5th Cir. April 10, 2017).

Don’t try this at home. An employee might well believe any suspension to be stressful, depressing, and/or a threat to paying the rent. Here the plaintiff presented no testimony or other evidence that he was unhappy to be off work for a couple of days.

Sexual Orientation Discrimination Illegal 2017-04-04T17:23:53-06:00

Posted on April 4, 2017

By Bill Wright

The Seventh Circuit Court of Appeals is the first federal appellate court in the country to rule that Title VII already protects employees from discrimination because of sexual orientation. In every other case that has previously reached a federal court of appeals, the court has ruled the employee could proceed only on the basis of a sex stereotyping claim. Employees could claim that they were discriminated against because, as men, they were not sufficiently masculine, or as women, they were not sufficiently feminine. But employees had no claim for discrimination based on their status as homosexuals.

The Seventh Circuit took the narrowest possible path. It held that homosexuality is attraction to a person of one’s own sex and, therefore, discrimination because of sexual orientation is discrimination that only occurs because of one’s own biological sex. Or, to put it another way, sexual orientation is the sex of the person with whom the employee associates. Title VII has always made it illegal to discriminate against an employee because the employee’s friends and lovers are of a different race. Now, the same reasoning applies to sex.

The Supreme Court might yet take up this case, or another court’s ruling on the same issue. When it does, expect the argument to dwell on the Seventh Circuit’s comparison of sexual orientation discrimination to Constitutional issues the Supreme Court has already seen. Stay tuned. Hively v. Ivy Tech Comm. Col., No. 15-1720 (7^th Cir. April 4, 2017).

Violence Against Women 2017-03-28T12:39:05-06:00

Posted on March 28, 2017

By Bill Wright

The facts alleged are horrific. A supervisor had a history of screaming obscenities and throwing things at women who worked for him. The employer sent him to anger management classes. His preferred victim was seven months pregnant when he coerced her to travel out of town with him by threatening to fire her or cut her hours. While out of town, she rejected his advances again and he killed her and raped the corpse.

The supervisor is serving two consecutive life terms without the possibility of parole, but the issue for the court was, did the victim’s estate have a claim for negligent supervision against the employer? The court rejected the employer’s motion to dismiss. Applying Illinois law, but citing the use of agency law in Ellerth and Faragher, the court ruled that employers have a duty to exercise reasonable care to control a supervisor’s conduct, even when the conduct is outside the scope of employment, if the supervisor uses his authority to perpetrate the conduct. Here, the supervisor used his authority to coerce the victim to be alone with him, resulting in her murder and rape.

In its arguments, the employer downplayed how much they knew about the murderer’s previous conduct and compared the murderer’s previous conduct to “thousands” of its other employees. In response, the court cited employers’ responsibility for supervisor’s tangible employment actions. For employers, the case demonstrates the need to train employees to appeal from supervisors’ threats. The case also shows the need to discharge raging *******s (insert expletive here) at work, no matter how many of them you have. Anicich v. Home Depot U.S.A., Inc. et al., No. 16-1693 (7^th Cir. March 24, 2017).

Sexual Orientation: Status Or Conduct? 2017-03-14T16:16:39-06:00

Posted on March 14, 2017

By Bill Wright

In Evans v. Georgia Regional Hosp. et al., No. 15-15234 (11^th Cir. March 10, 2017), the panel of three Court of Appeal judges produced three opinions. Two of the judges argued amongst themselves over a point of legal analysis. One judge maintained that Title VII does not protect people from discrimination based on their “status” as a homosexual, but from discrimination based “conduct” by which the person shows he or she varies from gender stereotypes. The other judge maintained that, when an employer discriminates against a person for being sexually attracted to people of the same biological sex, that is necessarily discrimination because the person does not conform to a gender stereotype.

It is a distinction without a difference. To prevail on a gender stereotyping claim, the plaintiff has to show the decision-maker somehow knew the plaintiff failed to conform to the gender stereotype. Once the plaintiff alleges a basis for the claim, the analytical point evaporates. The battle yet to come for these two judges is over discrimination based on a false belief that the plaintiff varies from gender stereotypes.

The panel of judges reached a decision because the third judge, a District Court judge sitting by designation, argued that current precedent dictated the result. In the end, the case was remanded so the plaintiff could plead more facts about gender stereotyping. We should expect more philosophizing to come.

Comment While You Can 2017-02-22T15:45:59-07:00

Posted on February 22, 2017

EEOC Preparing to Adopt New Harassment Guidance

By Beth Ann Lennon

The EEOC recently issued new proposed Guidance regarding how EEOC investigators should process charges of discrimination alleging harassment. The new Guidance describes heightened requirements for employers seeking to rely on their anti-harassment policies and reporting procedures to avoid liability. Many of the EEOC’s “suggestions” illustrate the agency’s disconnect from the realities most employers face. If you have concerns about these new requirements, you may submit your comments directly to the EEOC before the Guidance is formally adopted. But act fast – the comment period closes March 21, 2017. Comments can be submitted here.

Disparate Impact Threat Can Set Policy 2017-01-04T11:30:26-07:00

Posted on January 4, 2017

By Bill Wright

A recent disparate impact claim over drug testing sets the stage for participants to dictate improvements in employer policies. In Jones et al v. Boston, No. 15-2015 (1^st Cir. Dec. 28, 2016), the court considered claims by police officers who had been adversely affected by the police department’s drug testing based on hair samples. Previously, the officers had shown that the hair testing was 99% accurate for white officers but only “over 98%” accurate for black officers. (The difference was claimed to be due to environmental contamination of the hair, that became more likely due to cosmetic treatments minority officers used more often.) The court determined that this difference – less than 1% – was statistically significant and therefore could support a disparate impact claim. The court then considered whether use of the hair sample test was job-related and consistent with business necessity and whether the department “refused” to implement a less discriminatory alternative.

All parties agreed that drug testing was job-related. The officers contended that the hair test was not consistent with business necessity because it was not 100% accurate. Fortunately for employers, the court rejected this argument. Business justifications do not need to be “anything near 100% accurate.”

The court also ruled the officers had identified a less discriminatory alternative — conducting a follow-up urinalysis test whenever the hair analysis came back positive. Although the additional test would only detect very recent drug use, adding it would, obviously, reduce the number of false positives and, therefore, was less discriminatory. Finally, the court ruled that the department had “refused” to implement this additional test because the officers’ expert witness had raised the alternative during the litigation.

The result? When employees challenge an employer’s policy, they may get to trial by (a) showing any statistically significant difference in outcome for minority individuals and (b) proposing any improvement on the employer’s policy that the employer fails to implement. Employers will have to carefully consider the risks when employees suggest improvements in policies, claiming disparate impact.

Succession Planning Not Discriminatory 2016-12-14T12:00:24-07:00

Posted on December 14, 2016

By Bill Wright

A federal district court has ruled that instructing an HR Director to “adapt to bring out the best in our new and younger employees” was not evidence of age-based harassment. Vontlintel v. Eagle Comm., Inc. No. 5:14-cv-04125-KHV (D. Kan. December 9, 2016). The company had engaged in succession planning and, in that context, several senior managers had commented that the company needed to hire younger employees to take over for them. The COO summarized those comments in meetings. The company also selected another (younger) employee to begin learning various HR tasks for the growing company. In assigning the current HR Director to “perform more like a leader and manager” and to train the new HR Assistant, the COO commented that the HR Director should work with the “new and younger employees.” The court ruled that, because the context of the comment was succession planning, the use of “younger,” in the quoted comment and several other succession-related discussions, did not create an issue of fact on the HR Director’s claim of age-based hostile work environment.

Context matters. Instructing an employee to manage and to engage in succession-related training might justify a wide set of discussions about availability for continuing work and the circumstances of employment. But specificity helps. The court thought the COO should have just used the HR Assistant’s name.

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