Last week the U.S. Supreme Court held oral arguments in Crawford v. Metropolitan Government of Nashville and Davidson County. Scotusblog.com is a highly regarded blog that lets everyone easily keep track of Supreme Court cases. Yesterday, they published a summary of the argument which you can review here. If you don't want to take their word for it, you can read the official transcript of the oral argument from the Supreme Court's website here.
The case concerns a sexual harassment investigation in which several female employees, one of whom was the plaintiff (Ms. Crawford), were called to meet with the investigator. During this meeting, Ms. Crawford said that she and other female employees had been harassed. Six months or so later, Metro terminated Crawford on what she said were unfounded charges of embezzlement and drug use. She sued claiming her termination was in retaliation for her statements during the investigation.
As scotusblog.com's summary reflects, the Supreme Court appears to be leaning toward holding Crawford's statements to be protected under Title VII. The Sixth Circuit had rejected this reasoning saying Crawford cooperated with the investigation "by appearing for questioning at the request" of the investigator. To oppose unlawful activity, the court held, an employee needs to take some action. Crawford v. Metro. Gov't of Nashville & Davidson County, 211 Fed. Appx. 373 (6th Cir. 2006). Forgetting the fine legal distinctions at issue in the case, any employer that takes action against an employee because of what the employee said during the employer's internal investigation of a sexual harassment allegation acts on very thin ice. I've addressed that previously so enough said.
But the more important point, which might not be addressed by the Court but is nevertheless worth mentioning, is whether an employee's participation in the employer's internal sexual harassment investigation (regardless of what is said) constitutes protected activity.
Under the Title VII retaliation provision (as well as many others), an employee can oppose unlawful activity or the employee can "participate" in a proceeding or investigation into whether the employer's conduct violated Title VII. For opposition clause protected activity, what the employee says is what matters. For participation clause activity, all that matters is the fact of the participation itself.
In the Sixth Circuit's view, Metro's internal investigation was not participation clause activity because "at a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII."
This is not the place to go long into the legal distinctions. If you want to see the "no win" scenario example, look at Merritt v. Dillard Paper Co., 120 F.3d 1181, 1183 (11th Cir. 1997), where the court held that the employer could not lawfully fire an employee because, during his deposition testimony in a sexual harassment lawsuit, he admitted engaging in some of the harassing conduct. The admission was costly to his employer and they fired him as a result. The employee could be fired for harassing employees, the court said, but not because he testified truthfully about harassing them.
To return to reality (subject to change by the Court), the threshold for participation clause activity is clear and easy to apply. It requires the instigation of some formal legal proceeding, such as the filing of a lawsuit or charge of discrimination. Booker v. Brown and Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989). Courts and Congress, however, don't often favor employers (or employees, as the street to ambiguity never runs one way) with bright line rules, and here, the government (representing the views of the EEOC) at argument favored having the participation clause protect employees who cooperate in an employer's internal investigation.
Why does it matter? In most cases it won't. In many employer investigations, employee statement are likely to fall within the "opposition" clause. But take the Dillard Paper example. Suppose, instead of being at a depositon, the harasser had been summoned to meet with the HR manager investigating the underlying harassment charge and then admitted to engaging in horrific conduct toward the vicitimized employee? If the EEOC gets its way, may the employer, at this point, fire the harasser? After all, the employer is under pretty strong legal pressure to fire the harasser (even though the cases say this not always required).
Title VII was never meant to immunize employees from the consequences of their own unlawful conduct. But if any statement, even an admission of harassing conduct, is protected if it is made during an employer's investigation, where does that put the employer who wants to rid the workplace of all individuals who might harass other employees?
With the Supreme Court leaning heavily toward reversing the Sixth Circuit on the opposition clause issue, it may leave the participation clause issue for another case. But for now, it is enough to say there is a risk. So be careful not to put yourselves in any situation where you might end up having to defend your position to the Supreme Court.
Tuesday, October 14, 2008
Friday, October 3, 2008
The ADA Amendments of 2008 - Part 2 - "Regarded As" claims
As promised, this post continues where the prior post quit, with the “regarded as” definition of disability. As one court has said, the “regarded as” definition:
actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995).
However well meaning it may be, and I do not doubt the sincerity of the goal, the 2008 ADA Amendments include sloppy drafting. It provides that one has a disability if one is “regarded as” having “such an impairment” (emphasis added). Now, to digress, I long ago banished the word “such” from my documents unless I can use it the way Shakespeare used it, e.g., “parting is such sweet sorrow.” Lawyers tend to use “such” to avoid clarity.
In the ADA, however, "such" is an unmistakeable reference to the requirement in the first two definitions that an impairment must substantially limit a major life activity. The amendment, however, then defines a definition (remember that “regarded as” already defines what is a “disability”) to make the “such” in the “regarded as” definition superfluous:
(A) An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
The stated reason for this change is to legislatively overrule that part of Sutton which had held that being disqualified from a single job is insufficient and that to meet the regarded as standard the individual must show that they were perceived as unable to perform a broad range of jobs utilizing the same skills. At the same time, Congress requires the impairment to be substantial enough to last at least 6 months or more.
Whether the legislation, read literally, accomplishes its goal is doubtful beause the definition of a definition is circular. To be “regarded as” having a disability the individual must also establish she has been “subjected to an action prohibited” by the ADA. How exactly does one establish that an action is prohibited by the ADA without establishing that on has a disability in the first place?
The House report explains that the regarded as definition of disability “was meant to express the Committee’s understanding that unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities are often just as disabling as actual impairments, and its corresponding desire to prohibit discrimination founded on such perceptions.”
In keeping with this goal, what Congress meant to say was that one is regarded as having a disability “if the individual shows that an action (e.g., disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.”
As a practical matter, the new definition will no longer examine what the employer believed about the limitation to a major life activity but ask, whether the employer, at the time it took the adverse employment action, believed the employee had a non-transitory mental or physical impairment. Some might read this to say that an employer cannot take an employment action based upon the actual mental or physical impairment. But because Congress retained the myths and prejudice explanation in the legislative history, any “regarded as” claim will still examine whether or not the employer’s action was based upon myths and prejudices instead of sound medical judgment.
That is, as many courts have explained, to show one is “regarded as” having a disability, one must show the employer “entertained misperceptions” about his abilities. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008); citing Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (defendant "was not wrongly viewing [the employee] through a stereotype of disability, 'but rather follow[ed] the specific recommendations of [a] treating physician'" (quoting Cannon v. Levi Strauss & Co., 29 F. App'x 331, 336 (6th Cir. 2001)).
On other points, Congress resolved one debate in the courts by specifying that it is not a discriminatory act for an employer to not provide a reasonable accommodation when someone is “regarded as” having an impairment. This recognizes that the only realistic accommodation in this situation was to not regard the individual as having an impairment. After all, how does one accommodate a myths or a prejudice short of eliminating it?
There are other provisions in the ADA amendments worth mentioning. The Amendments prohibit “reverse” ADA claims, i.e., claims which allege discrimination on account of not having a disability. As far as I knew, reverse ADA claims were exceptionally rare to non-existent. And employers who are also places of public accommodation should remember that the broader definitions of “disability” will also affect the employer’s public accommodation obligations.
actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995).
However well meaning it may be, and I do not doubt the sincerity of the goal, the 2008 ADA Amendments include sloppy drafting. It provides that one has a disability if one is “regarded as” having “such an impairment” (emphasis added). Now, to digress, I long ago banished the word “such” from my documents unless I can use it the way Shakespeare used it, e.g., “parting is such sweet sorrow.” Lawyers tend to use “such” to avoid clarity.
In the ADA, however, "such" is an unmistakeable reference to the requirement in the first two definitions that an impairment must substantially limit a major life activity. The amendment, however, then defines a definition (remember that “regarded as” already defines what is a “disability”) to make the “such” in the “regarded as” definition superfluous:
(A) An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
The stated reason for this change is to legislatively overrule that part of Sutton which had held that being disqualified from a single job is insufficient and that to meet the regarded as standard the individual must show that they were perceived as unable to perform a broad range of jobs utilizing the same skills. At the same time, Congress requires the impairment to be substantial enough to last at least 6 months or more.
Whether the legislation, read literally, accomplishes its goal is doubtful beause the definition of a definition is circular. To be “regarded as” having a disability the individual must also establish she has been “subjected to an action prohibited” by the ADA. How exactly does one establish that an action is prohibited by the ADA without establishing that on has a disability in the first place?
The House report explains that the regarded as definition of disability “was meant to express the Committee’s understanding that unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities are often just as disabling as actual impairments, and its corresponding desire to prohibit discrimination founded on such perceptions.”
In keeping with this goal, what Congress meant to say was that one is regarded as having a disability “if the individual shows that an action (e.g., disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.”
As a practical matter, the new definition will no longer examine what the employer believed about the limitation to a major life activity but ask, whether the employer, at the time it took the adverse employment action, believed the employee had a non-transitory mental or physical impairment. Some might read this to say that an employer cannot take an employment action based upon the actual mental or physical impairment. But because Congress retained the myths and prejudice explanation in the legislative history, any “regarded as” claim will still examine whether or not the employer’s action was based upon myths and prejudices instead of sound medical judgment.
That is, as many courts have explained, to show one is “regarded as” having a disability, one must show the employer “entertained misperceptions” about his abilities. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008); citing Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (defendant "was not wrongly viewing [the employee] through a stereotype of disability, 'but rather follow[ed] the specific recommendations of [a] treating physician'" (quoting Cannon v. Levi Strauss & Co., 29 F. App'x 331, 336 (6th Cir. 2001)).
On other points, Congress resolved one debate in the courts by specifying that it is not a discriminatory act for an employer to not provide a reasonable accommodation when someone is “regarded as” having an impairment. This recognizes that the only realistic accommodation in this situation was to not regard the individual as having an impairment. After all, how does one accommodate a myths or a prejudice short of eliminating it?
There are other provisions in the ADA amendments worth mentioning. The Amendments prohibit “reverse” ADA claims, i.e., claims which allege discrimination on account of not having a disability. As far as I knew, reverse ADA claims were exceptionally rare to non-existent. And employers who are also places of public accommodation should remember that the broader definitions of “disability” will also affect the employer’s public accommodation obligations.
Wednesday, October 1, 2008
The ADA Amendments Act of 2008
Perhaps it was lost in the news about the Wall Street bailout but there has been little noted about the September 25, 2008, passage of substantial revisions to the Americans with Disabilities Act.
The "ADA Amendments Act of 2008," which takes effect on January 1, 2009, has as its primary purpose the goal of legislatively overturning almost every Supreme Court decision that had interpreted the ADA as it was originally enacted. Congress and the Courts like to play a game - Congress writes an ambiguous statute, a court interprets the ambiguity in a way Congress decides it doesn't like, and then Congress rewrites the ambiguous statute by blaming the court's interpretation of the ambiguous provisions. (If the Civil Rights Amendments Act of 1991 is any indicator, the "corrective" amendments usually create even more ambiguities.)
Third branch politics aside, what changes are in store for Tennessee employers?
The primary focus of the amendment was to change the definition of disability. As most know, the ADA defines disability in three ways. While Congress did not change the first two definitions of "disability," it codified additional terms so it could significantly broaden who has an impairment that substantially limits a major life activity.
First, with limited exceptions, Congress decreed that "mitigating measures" are not to be considered in the disability determination. That is, medications, other medical devices, or behavioral modifications are not to be considered in determining whether an impairment substantially limits a major life activity. The same is true of impairments that are episodic or in remission, so long as the limitations would be substantially limiting when active. These changes are designed to legislatively overrule Sutton v. United Airlines Inc., and other cases which had held mitigating measures should be considered. The lone exception is for "ordinary eyeglasses or contact lenses."
Second, Congress codified the EEOC's list of illustrative "major life activities," adding several others, including reading, concentrating, thinking and communicating." Working, which is in the EEOC regulation, was also added as was a separation category for "major bodily functions" such as the immune systems and the "reproductive functions."
Third, Congress said that the phrase "substantially limits" is not to be interpreted as held in Toyota Motor Manuf. v. Williams, that the phrase means the impairment must "prevent or severely restrict" the major life activity. Congress did not say what degree of substantial limitation" is used, specifying that the EEOC should revise its regulations to meet Congress' intent.
What is not addressed in this legislation is the statement in Sutton (relying on the EEOC regulations) that the major life activity of "working" is to be considered a "residual life activity, considered, as a last resort, only 'if an individual is not substantially limited with respect to any other major life activity.'" In fact, because Congress gave the EEOC the right to define what is a "disability" its definition of "working" as a major life activity, with the House report stating Congress did not mean to change the EEOC’s regulation as it applies to “working” as a major life activity. Thus, the requirement that the court must examine a broad range of jobs or a class of jobs rather than a solitary job will have even greater legal force.
Nor did Congress overrule the holding in Williams that in determining whether someone is substantially limited in manual tasks, a court must look at all the manual tasks, not just those used on the job.
Congress also amended the third definition of disability, which provides that an individual is disabled if they are regarded as having a substantially limiting impairment. This post is long enough, however, so I will address this change, its ambiguous language, its practical effect and any remaining changes in my next post.
The "ADA Amendments Act of 2008," which takes effect on January 1, 2009, has as its primary purpose the goal of legislatively overturning almost every Supreme Court decision that had interpreted the ADA as it was originally enacted. Congress and the Courts like to play a game - Congress writes an ambiguous statute, a court interprets the ambiguity in a way Congress decides it doesn't like, and then Congress rewrites the ambiguous statute by blaming the court's interpretation of the ambiguous provisions. (If the Civil Rights Amendments Act of 1991 is any indicator, the "corrective" amendments usually create even more ambiguities.)
Third branch politics aside, what changes are in store for Tennessee employers?
The primary focus of the amendment was to change the definition of disability. As most know, the ADA defines disability in three ways. While Congress did not change the first two definitions of "disability," it codified additional terms so it could significantly broaden who has an impairment that substantially limits a major life activity.
First, with limited exceptions, Congress decreed that "mitigating measures" are not to be considered in the disability determination. That is, medications, other medical devices, or behavioral modifications are not to be considered in determining whether an impairment substantially limits a major life activity. The same is true of impairments that are episodic or in remission, so long as the limitations would be substantially limiting when active. These changes are designed to legislatively overrule Sutton v. United Airlines Inc., and other cases which had held mitigating measures should be considered. The lone exception is for "ordinary eyeglasses or contact lenses."
Second, Congress codified the EEOC's list of illustrative "major life activities," adding several others, including reading, concentrating, thinking and communicating." Working, which is in the EEOC regulation, was also added as was a separation category for "major bodily functions" such as the immune systems and the "reproductive functions."
Third, Congress said that the phrase "substantially limits" is not to be interpreted as held in Toyota Motor Manuf. v. Williams, that the phrase means the impairment must "prevent or severely restrict" the major life activity. Congress did not say what degree of substantial limitation" is used, specifying that the EEOC should revise its regulations to meet Congress' intent.
What is not addressed in this legislation is the statement in Sutton (relying on the EEOC regulations) that the major life activity of "working" is to be considered a "residual life activity, considered, as a last resort, only 'if an individual is not substantially limited with respect to any other major life activity.'" In fact, because Congress gave the EEOC the right to define what is a "disability" its definition of "working" as a major life activity, with the House report stating Congress did not mean to change the EEOC’s regulation as it applies to “working” as a major life activity. Thus, the requirement that the court must examine a broad range of jobs or a class of jobs rather than a solitary job will have even greater legal force.
Nor did Congress overrule the holding in Williams that in determining whether someone is substantially limited in manual tasks, a court must look at all the manual tasks, not just those used on the job.
Congress also amended the third definition of disability, which provides that an individual is disabled if they are regarded as having a substantially limiting impairment. This post is long enough, however, so I will address this change, its ambiguous language, its practical effect and any remaining changes in my next post.
Thursday, September 11, 2008
Accommodations, the Interactive Process, and Supervisors who Listen
Today, the Sixth Circuit reversed the dismissal of an ADA claim because the supervisor didn't want to deal with the employee's accommodation request. Now, procedurally, to get a case dismissed prior to trial, the court must assume the employee's testimony is true so who knows what the truth is. The facts according to the employee were that she worked at a Dollar General Store as a cashier. She suffered from degenerative osteoarthritis of her cervical and lumbar spine and other conditions. For some time her supervisors allowed her to use a stool to sit on when she worked but other employees complained that she was getting preferential treatment. Without the stool, the employee couldn't work and so she took medical leave. On return, she was not permitted to use a stool and was told she would be limited to 3 five minute breaks per 6 hour shift. She refused and promptly obtained a doctor's note saying she could return to work and that it would be "beneficial" to let her use the stool. The supervisor, she said, refused to look at the note. She left work and the employer fired her for job abandonment.
The abandonment claim came down to whether or not the employer refused her request for a reasonable accommodation. In a case that comes down to whether or not an employee was reasonably accommodated (or offered an accommodation), the cases specify that "When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" This standard derives from the EEOC's "interactive process" for resolving what kind of an accommodation would be reasonable and effective.
The employer lost - at the early dismissal stage - because it was responsible for the breakdown in the process. It wasn't just that the employer refused to let the employee use a stool, though that was a significant part of the employer's failing. It was that when the employee brought in a note saying she could work if she used a stool, the employer did nothing other than to reject that as an accommodation. Had the employer continued to work with the employee, the result might have been different. For example, the employer in this case argued it proposed a reasonable accommodation of letting her take several breaks. The employee apparently wanted "unlimited" breaks (the decision isn't clear on this). That would probably have not been a reasonable request but if the employer had sat down with the employee and tried to work out a specific break schedule - or even a process for giving her a few more breaks as needed upon a reasonable request to her supervisor - the result here would have been different.
So, employers should make sure the supervisors know that in "negotiating" an accommodation, it is crucial that they listen. They don't have to agree with the employee's request - just listen to it and say, we will consider it and get back to you as soon as possible. The employee cannot assume the worst and the ADA puts the employer in control by saying that if the employer proposes a reasonable accommodation, the employee doesn't get to reject it (as long as, of course, the accommodation is genuinely reasonable).
The abandonment claim came down to whether or not the employer refused her request for a reasonable accommodation. In a case that comes down to whether or not an employee was reasonably accommodated (or offered an accommodation), the cases specify that "When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" This standard derives from the EEOC's "interactive process" for resolving what kind of an accommodation would be reasonable and effective.
The employer lost - at the early dismissal stage - because it was responsible for the breakdown in the process. It wasn't just that the employer refused to let the employee use a stool, though that was a significant part of the employer's failing. It was that when the employee brought in a note saying she could work if she used a stool, the employer did nothing other than to reject that as an accommodation. Had the employer continued to work with the employee, the result might have been different. For example, the employer in this case argued it proposed a reasonable accommodation of letting her take several breaks. The employee apparently wanted "unlimited" breaks (the decision isn't clear on this). That would probably have not been a reasonable request but if the employer had sat down with the employee and tried to work out a specific break schedule - or even a process for giving her a few more breaks as needed upon a reasonable request to her supervisor - the result here would have been different.
So, employers should make sure the supervisors know that in "negotiating" an accommodation, it is crucial that they listen. They don't have to agree with the employee's request - just listen to it and say, we will consider it and get back to you as soon as possible. The employee cannot assume the worst and the ADA puts the employer in control by saying that if the employer proposes a reasonable accommodation, the employee doesn't get to reject it (as long as, of course, the accommodation is genuinely reasonable).
Monday, September 8, 2008
How Not to Return a Veteran to Work after Military Leave
A few weeks ago, the Sixth Circuit handed the Metropolitan Nashville-Davidson County ("Nashville") a major defeat in a rather unusual case involving a soldier who returned from military leave.
The facts are important to understanding Nashville's argument but they are not simple to follow. Sergeant Petty worked as a Nashville police officer and member of the Army Reserve for years before being called to active duty in 2003. He ultimately transferred to Kuwait where he work in the supply stores. During an inspection, a still (he was from Tennessee, after all) was discovered and that ultimately led to Sergeant Petty with violating orders (against making or possessing alcohol) and conduct unbecoming an officer. In early 2005, asked to resign “for the good of the service,” and all charged against him were dropped and his discharge was characterized officially as “under honorable conditions (general)."
Petty asked to return to work on February 28, 2005, and Nashville began implementing its return to work process which is supposed to "ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department." During this process, Petty admitted some (but not all) of the details surrounding his arrest and when he was returned to work, Nashville launched an investigation into whether he was truthful in his return to work processing but ultimately concluded the allegation was unfounded and closed the investigation.
It didn't end there because Nashville continued to examine the reasons for Petty's discharge, ultimately learning that he had resigned in lieu of court-martial and had not disclosed this on his return to work application. Petty was then assigned to answering phone calls from the public, which is considered demeaning work, apparently.
In holding Nashville violated Petty's return to work rights under USERRA, the Sixth Circuit focused narrowly on whether Petty had provided the relevant form even if he didn't provide all of the relevant form. The information Petty omitted was not required, the court reasoned, as the only criteria that mattered under the statute was whether or not Petty had been discharged from military service under "honorable conditions." Once that question was answered, nothing else mattered, the court said, and Nashville "was not permitted to delay or otherwise limit Petty’s reemployment rights in any way" including by requiring Petty to "comply with its return-to-work process." Nashville had no right to ensure that returning officers were qualified to return to work because Congress decided returning veterans rights took precedence over Nashville's policies (it is this point on which Nashville has asked the court to reconsider its decision). The only qualification an employer may examine is a physical one; qualifications based upon whether the veterans conduct during military service are not permitted short of examining whether the discharge was under honorable conditions.
Piling it on, Nashville, the court said, had no reason to conduct a second "investigation" because it was "spawned" by the first invalid refusal to permit Petty to return to work. Nashville's choice, the court intimated, was to reinstate and then determine whether or not Petty was qualified, discharging him if necessary and consistent with the other USERRA provisions that prohibit discrimination against employees for taking military leave.
The final blow was the court saying Nashville had discriminated against Petty by refusing to permit him to work "side" jobs because he was under investigation. That was a benefit to which Petty was entitled and the fact that Nashville was conducting an invalid investigation meant that its denial on that basis was also invalid.
Employees returning from military leave must be promptly (within 2 weeks at most) reinstated. Doubts about the employee's non-physical ability to meet the current job qualification requirements must be resolved as part of the normal work rule processes and may not delay reinstatement.
If upheld, the decision presents a stark lesson for employers and illustrates some of the thorny issues posed by USERRA. But for his military leave, Nashville would have been entirly justified in refusing to hire or rehire Petty because of his legal difficulties in Kuwait (or Kentucky, for that matter). So the fact that the legal difficulties occurred on military leave required, the court unmistakably held, Nashville to ignore them, even if they raised genuine concerns about the returning employee's dishonesty.
The facts are important to understanding Nashville's argument but they are not simple to follow. Sergeant Petty worked as a Nashville police officer and member of the Army Reserve for years before being called to active duty in 2003. He ultimately transferred to Kuwait where he work in the supply stores. During an inspection, a still (he was from Tennessee, after all) was discovered and that ultimately led to Sergeant Petty with violating orders (against making or possessing alcohol) and conduct unbecoming an officer. In early 2005, asked to resign “for the good of the service,” and all charged against him were dropped and his discharge was characterized officially as “under honorable conditions (general)."
Petty asked to return to work on February 28, 2005, and Nashville began implementing its return to work process which is supposed to "ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department." During this process, Petty admitted some (but not all) of the details surrounding his arrest and when he was returned to work, Nashville launched an investigation into whether he was truthful in his return to work processing but ultimately concluded the allegation was unfounded and closed the investigation.
It didn't end there because Nashville continued to examine the reasons for Petty's discharge, ultimately learning that he had resigned in lieu of court-martial and had not disclosed this on his return to work application. Petty was then assigned to answering phone calls from the public, which is considered demeaning work, apparently.
In holding Nashville violated Petty's return to work rights under USERRA, the Sixth Circuit focused narrowly on whether Petty had provided the relevant form even if he didn't provide all of the relevant form. The information Petty omitted was not required, the court reasoned, as the only criteria that mattered under the statute was whether or not Petty had been discharged from military service under "honorable conditions." Once that question was answered, nothing else mattered, the court said, and Nashville "was not permitted to delay or otherwise limit Petty’s reemployment rights in any way" including by requiring Petty to "comply with its return-to-work process." Nashville had no right to ensure that returning officers were qualified to return to work because Congress decided returning veterans rights took precedence over Nashville's policies (it is this point on which Nashville has asked the court to reconsider its decision). The only qualification an employer may examine is a physical one; qualifications based upon whether the veterans conduct during military service are not permitted short of examining whether the discharge was under honorable conditions.
Piling it on, Nashville, the court said, had no reason to conduct a second "investigation" because it was "spawned" by the first invalid refusal to permit Petty to return to work. Nashville's choice, the court intimated, was to reinstate and then determine whether or not Petty was qualified, discharging him if necessary and consistent with the other USERRA provisions that prohibit discrimination against employees for taking military leave.
The final blow was the court saying Nashville had discriminated against Petty by refusing to permit him to work "side" jobs because he was under investigation. That was a benefit to which Petty was entitled and the fact that Nashville was conducting an invalid investigation meant that its denial on that basis was also invalid.
Employees returning from military leave must be promptly (within 2 weeks at most) reinstated. Doubts about the employee's non-physical ability to meet the current job qualification requirements must be resolved as part of the normal work rule processes and may not delay reinstatement.
If upheld, the decision presents a stark lesson for employers and illustrates some of the thorny issues posed by USERRA. But for his military leave, Nashville would have been entirly justified in refusing to hire or rehire Petty because of his legal difficulties in Kuwait (or Kentucky, for that matter). So the fact that the legal difficulties occurred on military leave required, the court unmistakably held, Nashville to ignore them, even if they raised genuine concerns about the returning employee's dishonesty.
Friday, September 5, 2008
Discipline for False Accusations of Harassment
Most sexual harassment policies include some kind of a warning about what could happen to an employee who makes a false accusation of harassment. The clause is not meant to discourage harassment claims but to ensure that employees do not use the potentially career-ending allegation of harassment as a way of exacting retribution for personal disputes.
A recent federal court of appeals decision from Missouri (which governs employers in the Midwest and north-Midwest states) helped clarify when employer may take action for falsely reporting harassment.
The male employee was the subject of a complaint by a female co-worker who reported that the male had gotten angry with her when they were discussing a policy matter. At the same time, the male reported to the HR department that the female had asked whether he had a girlfriend, made inappropriate sexual comments to him and that she had engaged in affectionate contact such as hugging or placing her head in his lap, He also said she had shown up one Sunday morning and asked to take him to church.
During the investigation, the female employee denied the allegations saying the male employee was pursuing her. She also produced a hand-drawn map the male had given her showing how she could get to his house. When confronted with this evidence, the male said: “I guess I was wrong for doing this.” The city ultimately fired him not only for making a false report but for his history of losing his temper on the job. A disciplinary board upheld the termination. The male employee sued claiming his termination was in retaliation for reporting the female employee's sexual advances.
Citing one of its prior decisions, the court of appeals explained why this case was one of the unusual situations where the court of appeals could hold as a matter of law the employer honestly believed the employee had made a false harassment complaint. The court of appeals contrasted the facts in this case with the situation that occurred in a 2005 case. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734 (8th Cir. 2005).
In Gilooly, the court had said a jury had to resolve whether the employer had retaliated against an employee who was terminated when the employer decided she had made a false harassment complaint. That decision, the latest decision explained, was made because the employer’s disbelief in the employee was founded solely on the statements of other employees and witnesses rather than on independently verifiable evidence or independent corroboration . . . from neutral non-parties. So, under this rule, "when an employer is presented with a 'he said, she said' set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee’s claim of retaliation must go to a jury."
What tipped the balance against sending the case to the jury was that the employer had "hard evidence" (the hand drawn map and the male's admission) that the male's complaint was false. It was also relevant that the independent review board upheld the employee's termination.
The holding in this case and the 2005 decision shows that it is probably a bad idea to impose discipline in any "he said, she said" situation. Rather, before an employer disciplines an employee for falsely reporting harassment, the employer is well-advised to have have compelling and independently verifiable evidence that the report is false.
A recent federal court of appeals decision from Missouri (which governs employers in the Midwest and north-Midwest states) helped clarify when employer may take action for falsely reporting harassment.
The male employee was the subject of a complaint by a female co-worker who reported that the male had gotten angry with her when they were discussing a policy matter. At the same time, the male reported to the HR department that the female had asked whether he had a girlfriend, made inappropriate sexual comments to him and that she had engaged in affectionate contact such as hugging or placing her head in his lap, He also said she had shown up one Sunday morning and asked to take him to church.
During the investigation, the female employee denied the allegations saying the male employee was pursuing her. She also produced a hand-drawn map the male had given her showing how she could get to his house. When confronted with this evidence, the male said: “I guess I was wrong for doing this.” The city ultimately fired him not only for making a false report but for his history of losing his temper on the job. A disciplinary board upheld the termination. The male employee sued claiming his termination was in retaliation for reporting the female employee's sexual advances.
Citing one of its prior decisions, the court of appeals explained why this case was one of the unusual situations where the court of appeals could hold as a matter of law the employer honestly believed the employee had made a false harassment complaint. The court of appeals contrasted the facts in this case with the situation that occurred in a 2005 case. Gilooly v. Mo. Dep’t of Health and Senior Servs., 421 F.3d 734 (8th Cir. 2005).
In Gilooly, the court had said a jury had to resolve whether the employer had retaliated against an employee who was terminated when the employer decided she had made a false harassment complaint. That decision, the latest decision explained, was made because the employer’s disbelief in the employee was founded solely on the statements of other employees and witnesses rather than on independently verifiable evidence or independent corroboration . . . from neutral non-parties. So, under this rule, "when an employer is presented with a 'he said, she said' set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee’s claim of retaliation must go to a jury."
What tipped the balance against sending the case to the jury was that the employer had "hard evidence" (the hand drawn map and the male's admission) that the male's complaint was false. It was also relevant that the independent review board upheld the employee's termination.
The holding in this case and the 2005 decision shows that it is probably a bad idea to impose discipline in any "he said, she said" situation. Rather, before an employer disciplines an employee for falsely reporting harassment, the employer is well-advised to have have compelling and independently verifiable evidence that the report is false.
EEOC issues Guidance on Performance and Conduct Standards under the ADA
Yesterday (September 3, 2008), the EEOC issued guidance for employers on when an individual with a disability can be held to performance standards and conduct requirements. The EEOC seemed to express incredulity that employers needed the guidance, saying it receives "numerous questions" on the topic.
As has become traditional for federal agencies that regulate employment, the guidance is in a question and answer format (30 questions in all) and it gives several examples.
The one question I held my breath about was "If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?" I'm not sure why I expected the EEOC to complicate the answer to this question but the answer (Yes, as long as the "conduct rule is job-related and consistent with business necessity") relieved me.
Other topics included what an employer should do when an employee asserts that a disability caused the conduct for which the employee is about to be disciplined ("the employer may still discipline the employee for the misconduct" but should engage in the "interactive process" to determine whether a reasonable accommodation could "address the problem").
Other topics covered are when an employer may have to modify attendance requirements (time off or adjusting start or end times for work), dealing with alcohol or drug use, and imposition of a dress code.
One interesting topic, at least for Tennessee employers, is that the EEOC states that "Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration." The Sixth Circuit has not provided employers with very clear guidance on this point.
Dicta in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998), complicates the issue. What the court actually held was that there is no "presumption" that uninterrupted attendance is an essential function of every job and that an employer may be required, as a reasonable accommodation, to grant a medial leave. Citing a district court decision, the court of appeal stated that there is no “per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’ under the ADA.” Cehrs, 155 F.3d at 782.
On the other hand, the Sixth Circuit has also held that the duty to reasonably accommodate does not require the employer to wait indefinitely for an employee's medical condition to be corrected. Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1047 (6th Cir. 1998). Nor are employers under a duty to keep employees on unpaid leave indefinitely until a position opens up. Rather, if an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996).
So, I'll say it again. When faced with a situation where a medical leave seems to be turning into an indefinite period of time, employers should exercise caution and are well advised to consult with qualfied counsel for specific guidance.
As has become traditional for federal agencies that regulate employment, the guidance is in a question and answer format (30 questions in all) and it gives several examples.
The one question I held my breath about was "If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?" I'm not sure why I expected the EEOC to complicate the answer to this question but the answer (Yes, as long as the "conduct rule is job-related and consistent with business necessity") relieved me.
Other topics included what an employer should do when an employee asserts that a disability caused the conduct for which the employee is about to be disciplined ("the employer may still discipline the employee for the misconduct" but should engage in the "interactive process" to determine whether a reasonable accommodation could "address the problem").
Other topics covered are when an employer may have to modify attendance requirements (time off or adjusting start or end times for work), dealing with alcohol or drug use, and imposition of a dress code.
One interesting topic, at least for Tennessee employers, is that the EEOC states that "Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration." The Sixth Circuit has not provided employers with very clear guidance on this point.
Dicta in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998), complicates the issue. What the court actually held was that there is no "presumption" that uninterrupted attendance is an essential function of every job and that an employer may be required, as a reasonable accommodation, to grant a medial leave. Citing a district court decision, the court of appeal stated that there is no “per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’ under the ADA.” Cehrs, 155 F.3d at 782.
On the other hand, the Sixth Circuit has also held that the duty to reasonably accommodate does not require the employer to wait indefinitely for an employee's medical condition to be corrected. Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1047 (6th Cir. 1998). Nor are employers under a duty to keep employees on unpaid leave indefinitely until a position opens up. Rather, if an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996).
So, I'll say it again. When faced with a situation where a medical leave seems to be turning into an indefinite period of time, employers should exercise caution and are well advised to consult with qualfied counsel for specific guidance.
Tuesday, August 26, 2008
Why Should You Acurately Document Performance Problems?
Today's decision of the court of appeals in Chicago points to the benefit of accurately documenting performance difficulities of employees, especially new employees.
As city in southern Illinois hired a jailer who, after some months on the job, got a mixed performance review. She did somethings OK, but the employer documented her slow work and lack of attention to detail were areas for improvement. She later complained about sexual harassment by a co-worker, her complaints were investigated, but her performance continued to lag. The employer called a meeting with her to discuss the performance. She brought a tape recorder to the meeting to surreptitiously record it, which under Illinois law constitutes a felony (unlike Tennessee law). The employer found out, had her house searched and the employee arrested when the tape was found.
The employee initially argued that she recorded the meeting to get evidence for her harassment suit and because the city admitted it had her arrested for illegally taping the meeting, the city effective admitted retaliating against her. The court turned this argument away as resting "upon a transparently overbroad view of the scope of the statute’s protection" because Title VII "does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination."
The employee next argued that the city criticized her performance after she complained, which showed, supposedly, bias against her. The court rejected this as well because the documented evidence was that the post-complaints performance criticisms were consistent with the critical evaluations made before she ever complained. That by itself, the court said, undermined any inference that her complaint and termination were related or that the employer's critiques of her performance were not genuine.
Employers hear the mantra of documentation alot and this case shows why. It is well understood that even valid complaints about an employee's performance can nevertheless be seen as pretextual if the employer ignores them until after the employee complains. In representing employers, we argue the employer's honest belief is what matters. It is hard to make this point effectively when the employer overlooks conduct that it would have otherwise had every right to criticize. It also mattered, in this case, that the employer did not "heap" more criticism on the employee after she complained. It did the smart thing and kept documenting the same performance difficulties noted before she complained.
Of course, this case also shows that an employer does not have to ignore, post-complaint misconduct at pain of being held liable for a retaliation claim. The employee's violation of the Illinois eavesdropping statute hadn't happened before her harassment complaint so, without evidence that this was dishonest, there was no reason the employer had to ignore this violation simply it arose after the employee complained.
Had the city employer not documented the performance issues before the employee complained about harassing conduct, the case might have come out differently. What may be also helpful to note is that the documentation was not elaborate. It simply listed the areas where the employee needed improvement. It takes something, in other words, but it doesn't take much.
As city in southern Illinois hired a jailer who, after some months on the job, got a mixed performance review. She did somethings OK, but the employer documented her slow work and lack of attention to detail were areas for improvement. She later complained about sexual harassment by a co-worker, her complaints were investigated, but her performance continued to lag. The employer called a meeting with her to discuss the performance. She brought a tape recorder to the meeting to surreptitiously record it, which under Illinois law constitutes a felony (unlike Tennessee law). The employer found out, had her house searched and the employee arrested when the tape was found.
The employee initially argued that she recorded the meeting to get evidence for her harassment suit and because the city admitted it had her arrested for illegally taping the meeting, the city effective admitted retaliating against her. The court turned this argument away as resting "upon a transparently overbroad view of the scope of the statute’s protection" because Title VII "does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination."
The employee next argued that the city criticized her performance after she complained, which showed, supposedly, bias against her. The court rejected this as well because the documented evidence was that the post-complaints performance criticisms were consistent with the critical evaluations made before she ever complained. That by itself, the court said, undermined any inference that her complaint and termination were related or that the employer's critiques of her performance were not genuine.
Employers hear the mantra of documentation alot and this case shows why. It is well understood that even valid complaints about an employee's performance can nevertheless be seen as pretextual if the employer ignores them until after the employee complains. In representing employers, we argue the employer's honest belief is what matters. It is hard to make this point effectively when the employer overlooks conduct that it would have otherwise had every right to criticize. It also mattered, in this case, that the employer did not "heap" more criticism on the employee after she complained. It did the smart thing and kept documenting the same performance difficulties noted before she complained.
Of course, this case also shows that an employer does not have to ignore, post-complaint misconduct at pain of being held liable for a retaliation claim. The employee's violation of the Illinois eavesdropping statute hadn't happened before her harassment complaint so, without evidence that this was dishonest, there was no reason the employer had to ignore this violation simply it arose after the employee complained.
Had the city employer not documented the performance issues before the employee complained about harassing conduct, the case might have come out differently. What may be also helpful to note is that the documentation was not elaborate. It simply listed the areas where the employee needed improvement. It takes something, in other words, but it doesn't take much.
Sunday, August 24, 2008
Hostile Environments, Confederate Flags and Women in Combat
Most private employers don't find themselve on the receiving end of suits that implicate the first amendment. Public employers, schools and universities, face it constantly, having to balance the risk of disruption (or non-compliance with harassment laws) with not impinging on the protected speech of employees or students. The task is a daunting one.
Last week, a federal court jury in Tennessee deadlocked on whether Anderson County High School's prohibition on wearing clothing depicting the confederal flag violated a students constitutional rights. Shortly afterwards, the Sixth Circuit issued a decision holding William Blount High School did not violate students' rights when it prohibited the wearing of a confederate flag. Each county argued its policies were geared toward prohibiting disruptions in schools, presented some evidence that racial disruptions had occurred in the past. Both pointed out that their policies meant that the confederate flag itself was not singled out for banishment but that the disruptive clothing policy applied to any clothing that was disruptive, such as Malcolm X shirts to use an example both courts cited. The Sixth Circuit held the school did not have to show that the wearing of confederate flag insignia would actually cause a disruption, it needed to show its decision reasonably forecast that it would cause a substantial disruption.
Compare these decisions to a court decision which struck down Temple University's sexual harassment policy because it infringed the free speech rights of a student who wanted to be able to discuss women in combat and in the military. The university policy prohibited any "expressive, visual or physical conduct” when that conduct “has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.”
The problem with this, the court held, was that it let the university impose sanctions for speech based solely on the motive of the speaker and without testing whether the speech is likely to cause a material disruption to the school environment. "Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech."
Some of the difference in results can be explained by the fact that courts provide grade schools with substantially more flexibility than in a university setting, a policy that permits the more stringent enforcement of discipline among pre-adults. My point is that these cases are a harbinger for public employers, some of whom also face complex decisions about employee expression in the workplace. Public employers have a significant ability to prevent disruption in the workplace so it may be they can have a facially neutral policy that prohibits the wearing of clothing that would likely cause disruption. How an employer would show what would cause a disruption remains to be seen, as courts will require some showing of a disruption.
But public employee speech in the workplace that does not pose a risk of disruption poses a more difficult problem. In that circumstance, a public employer could probably not point to its harassment policies as providing a justification for prohibiting employee speech. Speech alone, one would think, could only rarely rise to the level being severe or pervasive enough to be actionable. But then how does one deal with racial epithets? Any employer, public or private that does take reasonable steps to prevent that kind of speech risks being held liable for racial harassment. Of course, it is the rare case where speech constitutes the only basis for a harassment complaint, and non-expressive conduct motivated by a prohibited characteristic is not protected speech.
I don’t envy the public employer who must sort this out.
Last week, a federal court jury in Tennessee deadlocked on whether Anderson County High School's prohibition on wearing clothing depicting the confederal flag violated a students constitutional rights. Shortly afterwards, the Sixth Circuit issued a decision holding William Blount High School did not violate students' rights when it prohibited the wearing of a confederate flag. Each county argued its policies were geared toward prohibiting disruptions in schools, presented some evidence that racial disruptions had occurred in the past. Both pointed out that their policies meant that the confederate flag itself was not singled out for banishment but that the disruptive clothing policy applied to any clothing that was disruptive, such as Malcolm X shirts to use an example both courts cited. The Sixth Circuit held the school did not have to show that the wearing of confederate flag insignia would actually cause a disruption, it needed to show its decision reasonably forecast that it would cause a substantial disruption.
Compare these decisions to a court decision which struck down Temple University's sexual harassment policy because it infringed the free speech rights of a student who wanted to be able to discuss women in combat and in the military. The university policy prohibited any "expressive, visual or physical conduct” when that conduct “has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.”
The problem with this, the court held, was that it let the university impose sanctions for speech based solely on the motive of the speaker and without testing whether the speech is likely to cause a material disruption to the school environment. "Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech."
Some of the difference in results can be explained by the fact that courts provide grade schools with substantially more flexibility than in a university setting, a policy that permits the more stringent enforcement of discipline among pre-adults. My point is that these cases are a harbinger for public employers, some of whom also face complex decisions about employee expression in the workplace. Public employers have a significant ability to prevent disruption in the workplace so it may be they can have a facially neutral policy that prohibits the wearing of clothing that would likely cause disruption. How an employer would show what would cause a disruption remains to be seen, as courts will require some showing of a disruption.
But public employee speech in the workplace that does not pose a risk of disruption poses a more difficult problem. In that circumstance, a public employer could probably not point to its harassment policies as providing a justification for prohibiting employee speech. Speech alone, one would think, could only rarely rise to the level being severe or pervasive enough to be actionable. But then how does one deal with racial epithets? Any employer, public or private that does take reasonable steps to prevent that kind of speech risks being held liable for racial harassment. Of course, it is the rare case where speech constitutes the only basis for a harassment complaint, and non-expressive conduct motivated by a prohibited characteristic is not protected speech.
I don’t envy the public employer who must sort this out.
Friday, August 15, 2008
Employers May Not Retaliate Against Employees Who Take FMLA Leave
This won't be earth-shattering. It will eliminate any doubts (that most employers didn't have in the first place).
A Dollar General store in Tennessee fired a computer programmer who had a serious health condition. The project on which she was working was behind schedule and missing deadlines. Shortly after she requested FMLA leave, Dollar General began imposing discipline on her. A few weeks later, she was fired. She said at trial that when she was terminated, a supervisor told her "because of your health, I don't think you can do the job." The jury found Dollar General had fired the employee because she took FMLA leave.
On appeal, Dollar General argued that the FMLA does not prohibit employers from terminating employees who have taken FMLA leave. Read literally, Dollar General was correct. The relevant statutory language simplys says that it is unlawful to discriminate against someone "for
for opposing any practice made unlawful by this subchapter." An individual who requests FMLA leave exercises her rights under the FMLA but doesn't necessarily do so by saying the employer is engaging in an "unlawful" practice. Of course, the DOL FMLA regulations say: "employers cannot use the taking of FMLA leave as a negative factor in employment actions" but regulations cannot increase the rights that Congress chose not to add.
The problem is, as the court recognized, that the right to take FMLA would be all but meaningless if an employer could use that leave against the employee. Courts have, moreover, been willing to imply a retaliation prohibition even where the statute does not expressly prohibit retaliation, as I explained in a prior post. It is hardly surprising, therefore, for the Sixth Circuit to read the FMLA as protecting employees because they had exercised FMLA rights. (Given these other decisions, I find some of the Sixth Circuit's reasoning unnecessary but I can't quibble with the results.)
The decision isn't going to come as a shock to most employers in Tennessee. Still, there is merit to reminding Tennessee employers that they should exercise caution and use some common sense when imposing discipline on employees who have taken FMLA leave.
A Dollar General store in Tennessee fired a computer programmer who had a serious health condition. The project on which she was working was behind schedule and missing deadlines. Shortly after she requested FMLA leave, Dollar General began imposing discipline on her. A few weeks later, she was fired. She said at trial that when she was terminated, a supervisor told her "because of your health, I don't think you can do the job." The jury found Dollar General had fired the employee because she took FMLA leave.
On appeal, Dollar General argued that the FMLA does not prohibit employers from terminating employees who have taken FMLA leave. Read literally, Dollar General was correct. The relevant statutory language simplys says that it is unlawful to discriminate against someone "for
for opposing any practice made unlawful by this subchapter." An individual who requests FMLA leave exercises her rights under the FMLA but doesn't necessarily do so by saying the employer is engaging in an "unlawful" practice. Of course, the DOL FMLA regulations say: "employers cannot use the taking of FMLA leave as a negative factor in employment actions" but regulations cannot increase the rights that Congress chose not to add.
The problem is, as the court recognized, that the right to take FMLA would be all but meaningless if an employer could use that leave against the employee. Courts have, moreover, been willing to imply a retaliation prohibition even where the statute does not expressly prohibit retaliation, as I explained in a prior post. It is hardly surprising, therefore, for the Sixth Circuit to read the FMLA as protecting employees because they had exercised FMLA rights. (Given these other decisions, I find some of the Sixth Circuit's reasoning unnecessary but I can't quibble with the results.)
The decision isn't going to come as a shock to most employers in Tennessee. Still, there is merit to reminding Tennessee employers that they should exercise caution and use some common sense when imposing discipline on employees who have taken FMLA leave.
Monday, August 11, 2008
Arbitration of USERRA Claims
For the first time in a while, courts are having the opportunity to construe the terms of the Uniformed Services Employment and Reemployment Rights Act of 1994. Because USERRA has a structure somewhat different than the more common federal discrimination statutes it poses increase risks and correspondingly greater obligations on employers who have employees on military leave.
Answering one of the open questions, the Sixth Circuit today held in this decision that the terms of USERRA did not clearly prohibit arbitration of USERRA claims. That means that general arbitration agreements can lawfully mandate arbitration of USERRA and other claims.
Drafting a valid arbitration clause is not simple so employers should consult with counsel before deciding to impose one on employees. Courts have invalidated arbitration clauses for a number of reasons such as because they slanted too much in the employer's favor, imposed a disproportionate cost on the employee to invoke it, or did not permit the arbitrator to award full relief authorized by the statute. Properly drafted, however, an arbitration clause will be enforced.
Answering one of the open questions, the Sixth Circuit today held in this decision that the terms of USERRA did not clearly prohibit arbitration of USERRA claims. That means that general arbitration agreements can lawfully mandate arbitration of USERRA and other claims.
Drafting a valid arbitration clause is not simple so employers should consult with counsel before deciding to impose one on employees. Courts have invalidated arbitration clauses for a number of reasons such as because they slanted too much in the employer's favor, imposed a disproportionate cost on the employee to invoke it, or did not permit the arbitrator to award full relief authorized by the statute. Properly drafted, however, an arbitration clause will be enforced.
Friday, August 8, 2008
Proving an Unlawful Motive under ERISA's Retaliation Provision
I cut my employment law teeth by defending against retaliation claims so I have a special affinity for those that raise unusual issues. A recent First Circuit decision (a court that rules on decisions from New England and Puerto Rico) caught my eye and gives me an opportunity to talk about two important points employers should heed. (This court does not set precedent for Tennessee cases so employers, as always, should not blindly assume the decision will protect them.)
Employers are often surprised by the number of federal retaliation statutes. I don’t have an exact count but can safely say there are over 30 different statutes which prohibit retaliation by certain employers for certain conduct engaged in by employees. These days, employees can engage in “protected activity” in a variety of ways. Some ways are familiar (making complaints of unlawful discrimination) others are new (complaints by airline employees about airline safety) others are industry specific (complaints about corporate misconduct for publicly traded companies or nuclear energy safety) or conduct specific (complaints about unlawful environmental pollution). Thanks to CBOCS West v. Humphries (which I discussed here), we know that one of the oldest statutes which prohibits retaliation was passed after the civil war. The oldest that expressly prohibits retaliation is, of course, the National Labor Relations Act, where the protected conduct involves unionizing.
One of the less familiar retaliation provisions appears in the Employee Retirement Income Security Act (ERISA). This statute, as most know, governs benefits and the theory behind this retaliation provision is that, what good would it be for an employee to seek or obtain a benefit if an employer could turn around and make life difficult on the employee as a result. So, ERISA includes a retaliation statute that prohibits employers from retaliating against an employee because the employee sought or obtained benefits. It also prohibits an employer from “interfering” with an employee’s right to a benefit.
To keep things from getting completely out of hand, however, courts uniformly interpret the ERISA retaliation statute to require more than simply a termination following an application for or an award of ERISA benefits. The employee must, as in almost any retaliation claim, show the employer intended to harm (in the employment sense) an employee because the employee had or requested ERISA governed benefits. The classic example would be where an employer terminates an employee because the employee has caused or about to cause an increase in the company’s health care expenses. See Dewitt v. Proctor Hospital, 517 F.3d 944 (7th Cir. 2008) (this may also violate the Americans with Disabilities Act if the employee has a disability).
Despite its age, ERISA retaliation claims are still just unusual enough that some employers will still act without thinking about the consequences. A recent decision, however, provides employers with something of an encouragement to think through the consequences of their actions.
Parametric Technology notified a number of employees that they were going to be laid off. One, a software engineer, shortly before the termination date, notified the PT that he wanted to take short term disability benefits. HR, thinking the claim “odd” (their words) consulted with in-house counsel before forwarding the claim to the insurer who ultimately approved the disability benefit. The employee then looked for work, getting hired by a consulting company that was to provide employees to PT. Thus, PT saw the software engineer back working at its facility (though now a subcontractor employee) when it thought he was still receiving disability benefits and fired him for double-dipping.
The software engineer argued the double-dipping motive wasn’t the real reason for his persona non-grata status pointing to the fact that HR treated his request for benefits with skepticism and to their consulting with counsel before processing the claim paperwork. The court didn’t buy it: employer skepticism (alone) is ordinarily not unlawful because “ERISA does not impose upon an employer a duty to buy a pig in a poke, and caution is a far cry from discriminatory animus.”
And consulting with counsel before proceeding, the court said, was anything but discriminatory. “A personnel officer faced with a novel situation hardly can be faulted for opting to secure the advice of counsel concerning that situation.” And, "the prudent step of seeking a lawyer's advice is not the stuff on which a finding of discriminatory intent can be premised."
At the risk of sounding self serving, there is a lesson here for employers who are faced with an employee who complains or requests any contractually agreed upon or statutorily mandated right. It is better to review the situation carefully, consult with counsel if doubts remain, before proceeding precipitously.
Employers are often surprised by the number of federal retaliation statutes. I don’t have an exact count but can safely say there are over 30 different statutes which prohibit retaliation by certain employers for certain conduct engaged in by employees. These days, employees can engage in “protected activity” in a variety of ways. Some ways are familiar (making complaints of unlawful discrimination) others are new (complaints by airline employees about airline safety) others are industry specific (complaints about corporate misconduct for publicly traded companies or nuclear energy safety) or conduct specific (complaints about unlawful environmental pollution). Thanks to CBOCS West v. Humphries (which I discussed here), we know that one of the oldest statutes which prohibits retaliation was passed after the civil war. The oldest that expressly prohibits retaliation is, of course, the National Labor Relations Act, where the protected conduct involves unionizing.
One of the less familiar retaliation provisions appears in the Employee Retirement Income Security Act (ERISA). This statute, as most know, governs benefits and the theory behind this retaliation provision is that, what good would it be for an employee to seek or obtain a benefit if an employer could turn around and make life difficult on the employee as a result. So, ERISA includes a retaliation statute that prohibits employers from retaliating against an employee because the employee sought or obtained benefits. It also prohibits an employer from “interfering” with an employee’s right to a benefit.
To keep things from getting completely out of hand, however, courts uniformly interpret the ERISA retaliation statute to require more than simply a termination following an application for or an award of ERISA benefits. The employee must, as in almost any retaliation claim, show the employer intended to harm (in the employment sense) an employee because the employee had or requested ERISA governed benefits. The classic example would be where an employer terminates an employee because the employee has caused or about to cause an increase in the company’s health care expenses. See Dewitt v. Proctor Hospital, 517 F.3d 944 (7th Cir. 2008) (this may also violate the Americans with Disabilities Act if the employee has a disability).
Despite its age, ERISA retaliation claims are still just unusual enough that some employers will still act without thinking about the consequences. A recent decision, however, provides employers with something of an encouragement to think through the consequences of their actions.
Parametric Technology notified a number of employees that they were going to be laid off. One, a software engineer, shortly before the termination date, notified the PT that he wanted to take short term disability benefits. HR, thinking the claim “odd” (their words) consulted with in-house counsel before forwarding the claim to the insurer who ultimately approved the disability benefit. The employee then looked for work, getting hired by a consulting company that was to provide employees to PT. Thus, PT saw the software engineer back working at its facility (though now a subcontractor employee) when it thought he was still receiving disability benefits and fired him for double-dipping.
The software engineer argued the double-dipping motive wasn’t the real reason for his persona non-grata status pointing to the fact that HR treated his request for benefits with skepticism and to their consulting with counsel before processing the claim paperwork. The court didn’t buy it: employer skepticism (alone) is ordinarily not unlawful because “ERISA does not impose upon an employer a duty to buy a pig in a poke, and caution is a far cry from discriminatory animus.”
And consulting with counsel before proceeding, the court said, was anything but discriminatory. “A personnel officer faced with a novel situation hardly can be faulted for opting to secure the advice of counsel concerning that situation.” And, "the prudent step of seeking a lawyer's advice is not the stuff on which a finding of discriminatory intent can be premised."
At the risk of sounding self serving, there is a lesson here for employers who are faced with an employee who complains or requests any contractually agreed upon or statutorily mandated right. It is better to review the situation carefully, consult with counsel if doubts remain, before proceeding precipitously.
Saturday, August 2, 2008
Preventing Workplace Violence
Last Sunday's tragedy here in Knoxville then Friday’s workplace shooting outside of Philadelphia brought to mind an extremely unpleasant topic. Simply put, all employers should address violence in the workplace in the hope that at least one tragedy can be prevented. There may be no sure way to prevent all workplace murders (any more than there is a way to prevent all murders) but I thought I might mention that there are warning signs employers can use to identify a potential for workplace violence.
The issue is too complex for one (or even several blog posts). Besides, there are a number of well-written publications that better address it. (One is “Threats Pending Fuses Burning: Managing Workplace Violence” by Dennis A. Davis, whom I heard speak on the subject at Kramer Rayson’s Labor and Employment Seminar in 2006.)
While mass murders are more likely to make the news, workplace violence is not just about them. The FBI, in its “Workplace Violence, Issues in Response” reminds us that mass murders are relatively infrequent (despite their publicity) and it is “the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.”
Not surprisingly, there is a good bit of similarity between the FBI publication and Dennis Davis’ book. Most incidences of workplace violence, Dennis said, don’t happen without warning to someone even if it is not one of the intended victims. Dennis breaks down workplace violence into three “stages” graded by their increasing potential for violence. Each stage has recognizable characteristics. I won’t try to condense Dennis’ book (or his talk) here but it is an eye-opener. OSHA and the CDC (with NIOSH) have also published Internet sources that will help an employer address and reduce the risk of workplace violence.
What surprises most people when they hear about workplace violence prevention is the link between an individual’s violent tendencies and some of the more “mundane” issues that arise in the workplace. Dennis and the FBI make this point repeatedly. The FBI: “Prevention programs that do not consider harassment in all forms and threats are unlikely to be effective.” Or as Dennis’ book says, “violence starts with thoughts and moves first to language then to actions.”
The FBI recommends employers act before a tragedy by developing a “workplace violence strategy.” Support it from the “top”, tailor it to your workplace, training managers and employees to spot, report and prevent some of the behaviors that might lead to violence, and conduct practice exercises. All employers should have a prevention program that compliments the harassment policy and provides procedures for investigating, assessing and addressing violent behavior. One thing I like about the FBI’s approach is the way it describes the “zero tolerance” policy an employer should adopt. Rather than imposing a "zero tolerance" mandatory penalty approach, employers should make it clear that zero tolerance means: “no threatening or violent behavior is acceptable and no violent incident will be ignored."
My description of these texts grossly oversimplifies the issues. The FBI report and Dennis’ book cover the issues and concerns in detail. I simply wanted to mention that there are resources out there that might prevent another tragedy.
The issue is too complex for one (or even several blog posts). Besides, there are a number of well-written publications that better address it. (One is “Threats Pending Fuses Burning: Managing Workplace Violence” by Dennis A. Davis, whom I heard speak on the subject at Kramer Rayson’s Labor and Employment Seminar in 2006.)
While mass murders are more likely to make the news, workplace violence is not just about them. The FBI, in its “Workplace Violence, Issues in Response” reminds us that mass murders are relatively infrequent (despite their publicity) and it is “the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.”
Not surprisingly, there is a good bit of similarity between the FBI publication and Dennis Davis’ book. Most incidences of workplace violence, Dennis said, don’t happen without warning to someone even if it is not one of the intended victims. Dennis breaks down workplace violence into three “stages” graded by their increasing potential for violence. Each stage has recognizable characteristics. I won’t try to condense Dennis’ book (or his talk) here but it is an eye-opener. OSHA and the CDC (with NIOSH) have also published Internet sources that will help an employer address and reduce the risk of workplace violence.
What surprises most people when they hear about workplace violence prevention is the link between an individual’s violent tendencies and some of the more “mundane” issues that arise in the workplace. Dennis and the FBI make this point repeatedly. The FBI: “Prevention programs that do not consider harassment in all forms and threats are unlikely to be effective.” Or as Dennis’ book says, “violence starts with thoughts and moves first to language then to actions.”
The FBI recommends employers act before a tragedy by developing a “workplace violence strategy.” Support it from the “top”, tailor it to your workplace, training managers and employees to spot, report and prevent some of the behaviors that might lead to violence, and conduct practice exercises. All employers should have a prevention program that compliments the harassment policy and provides procedures for investigating, assessing and addressing violent behavior. One thing I like about the FBI’s approach is the way it describes the “zero tolerance” policy an employer should adopt. Rather than imposing a "zero tolerance" mandatory penalty approach, employers should make it clear that zero tolerance means: “no threatening or violent behavior is acceptable and no violent incident will be ignored."
My description of these texts grossly oversimplifies the issues. The FBI report and Dennis’ book cover the issues and concerns in detail. I simply wanted to mention that there are resources out there that might prevent another tragedy.
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