Most of us have heard stories about emails in the workplace resurfacing in litigation. So, the facts of Elam v. Regions Financial Corp. are not surprising.

In Elam v. Regions Financial Corp., a newly hired teller was frequently sick at work and later discovered that she was pregnant and suffering from morning sickness.  The bank allowed the teller to have a drink at her station and to arrive late due to morning sickness.  The teller had performance issues other than her attendance.  She would leave her cash drawer unlocked and sometimes leave her station in the middle of a transaction.  Although the teller was reprimanded, her behavior did not improve.  Her supervisor sent an email to HR requesting to fire the "pregnant girl teller." Upon HR's approval, the teller was fired.  The teller sued the bank under Title VII for pregnancy discrimination. 

The 8th Circuit Court of Appeals upheld the lower court's ruling in favor for the bank.  The Court did not find any direct or indirect evidence of discrimination.  The supervisor's reference to the teller as "the pregnant girl teller" was not found to be discriminatory because references to a protected status without reflecting bias is not direct evidence of discrimination.  The bank had provided numerous accommodations and had non-discriminatory reasons for terminating her.  Finally, the Court noted that pregnancy does not require special treatment.

The case ended well for the bank.  However, this single email was likely a significant reason for the litigation.  Avoiding litigation is more important than winning litigation.  Remind your workplace that email communication is communication nonetheless and could be the basis of litigation.

The EEOC seems to send a lot of charges to employers just before the end of each fiscal quarter, which is coming right up on March 31st.  After investigating the facts of an EEOC charge, one of the first decisions that an employer must make is whether to mediate.  

EEOC mediation provides a quick, confidential way to settle a dispute with an employee.  And, we are fortunate that the Little Rock EEOC office is particularly good at mediation.  Here are some issues to consider when deciding whether to participate in EEOC mediation. 

Does the employee still work for you?

Defending a charge is much more complicated when the employee still works for your company.  The risk of retaliation is significant because any adverse action against the employee, even where warranted, may create the appearance of retaliation.  Mediation provides a forum in which the employer and employee can reach a compromise to which both parties agree.  In some cases, the employer may even be able to negotiate the employee's resignation from the company, although that won't be inexpensive. 

How good is your evidence?

No employer is perfect, and sometimes the evidence of the issue is just not as good as it should be. Important documents may be missing or were never created.  Witnesses to the conduct may have already left the company, perhaps not voluntarily, and their recollection of the events may be unpredictable. 

Is this a matter you need to resolve quickly? 

You may have a business reason that is completely unrelated to the charge that requires a quick resolution. Defending an EEOC charge will cost time and money, and those resources may be better directed toward a settlement.   

Is this an issue that you would like to keep confidential? 

The mediation process is confidential; complaints filed in court are a matter of public record. 

Are you willing to put something - probably some cash - on the table?

Don't come to mediation with nothing to offer.  If the employee is still working for the company, you may be able to offer non-cash items like training or reassignment in the company.  If you plan to settle a charge with non-cash benefits, make sure they have significant value or the mediator may come to the conclusion that you are not negotiating in good faith.  

Bottom line: Mediation is not the answer for every charge, but in some instances, it can resolve a complicated problem quickly and confidentially.  

 

 

Without being told by their lawyers, most employers know that they shouldn't fire an employee because she's not "pretty." Some employers need a little additional coaching. 

In 1989, the US Supreme Court found that gender stereotyping was a violation of Title VII.  In Price Waterhouse v. Hopkins, the Supreme Court considered whether gender stereotyping disadvantaged a woman with a masculine appearance and mannerisms when compared to men. 

But, does discrimination occur when a female manager fires a female employee because she doesn't have a "Midwestern girl look"? That's just the question the Eighth Circuit recently answered in Lewis v. Heartland Inns.

In Heartland Inns, the plaintiff, Lewis, was by all accounts an excellent employee, and her supervisor recommended Lewis for a promotion to the hotel front-desk during the day shift. Lewis was in the new position for a month when a more senior manager, also female, visited the hotel. The senior manager did not believe that Lewis had the right "Midwestern girl look" for the front desk, and in the past the senior manager had stated that the Heartland staff should be "pretty," particularly at the front desk.  Upon meeting Lewis, the senior manager insisted on conducting her own interview of Lewis, although Lewis had already been in the front desk position for over a month.  

As might be expected, the interview did not go well.  The accounts of the interview varied between Lewis and the senior manager, but the result was Lewis' termination.

The Eighth Circuit reasoned that Lewis did not need to prove that she was disadvantaged in comparison to men, but instead, the court found that "the principle focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole." Therefore, there was no need to show that Lewis was treated poorly in comparison to men. 

Yes, this case expands the theories under which employers can be sued in the Eighth Circuit, but the rule that you should not make employment decisions based on employee's appearance really isn't news.  Unless an appearance standard is a bona fide occupational qualification (Hooters girls?), employers should just close their eyes when they make employment decisions.

The EEOC has watched the OFCCP collect millions from employers by pursuing claims of systemic discrimination in the employers' hiring processes.  The OFCCP uses statisticians and testing specialists to uncover statistical evidence of discrimination, and this strategy has been remarkably effective for the agency. 

For the last few years, the EEOC has worked to expand individual charges into class claims, particularly in the area of failure-to-hire claims.  The EEOC will closely scrutinize any barrier to hire that the employer puts in place, such as a pre-employment tests, drug screens, or background checks. You will know that you are in the EEOC's systemic discrimination cross hairs if the EEOC issues a Request for Information (RFI) with an individual charge that requests information regarding:

• Validation studies for pre-employment tests.
• Hiring policy information for positions unrelated the charging party's position.
• Background check vendors or policies.
  

While failure-to-hire claims are the low hanging fruit, the EEOC also looks for class claims that can be based on other seemingly neutral policies, like compensation policies. For example, if EEOC begins asking for pay data that is unrelated to the individual charge, that's a good sign that the EEOC is looking to expand the investigation outside of the individual claim. Attorneys will object to these requests as irrelevant to the charge, but the EEOC's investigative authority is broad.  The Second Circuit recently upheld the EEOC's right to subpoena nationwide records in a charged filed by an individual.  

An employer's best defense to this EEOC strategy is to get your house in order before the EEOC knocks on the door. Federal contractors who have to answer to the OFCCP are familiar with this approach and conduct self-evaluations to determine whether the company has any existing risk.  It's better to address these issues internally before a federal agency does it for you.    

It's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

In Anderson v. Family Dollar Stores of Arkansas, Inc., the Eighth Circuit Court of Appeals closely followed the US Supreme Court's direction that Title VII is not a "general civility code for the American workplace."   Employers can take comfort in the high standard courts have set regarding bad behavior in the workplace, but a company that wants to remain an employer of choice will hold their management team to a much higher standard.   Bottom line, if one of your managers is a jerk, you should demand a change in behavior or show him or her the door.

The plaintiff in Family Dollar Stores started work as a manager trainee for Family Dollar. She was fired after her first day. She complained to HR and met with the district manager. During her meeting, plaintiff claims that the district manager talked about very personal things, such as her hair, eyes, and marital status. Plaintiff was rehired and placed in a five-week training program. During the district manager's contact with plaintiff, which was once a week for approximately an hour, plaintiff claims that the district manager was physically inappropriate towards her and insinuated that he could control her future in the company.  

At the end of her training period, plaintiff was assigned to a store as manager. During the first week she made phone calls to the district manager for assistance. At one time, the district manager, who was in Florida at the time, told plaintiff that he felt she should be with him.  Another time, the plaintiff claims that the district manager called her "baby doll."

Several months after plaintiff was hired, the district manager came to the store and plaintiff addressed all of her problems with her employees. She also told him they needed to prepare the appropriate paperwork for her back pain because she was forced to unload the truck by herself.  The district manager's demeanor worsened and he grabbed plaintiff and told her he thought she was no longer willing to be a team player.  He then fired plaintiff.

Plaintiff did not report any of the harassment to HR and even though she wrote an email to HR after her termination, she did not include the sexual harassment. She first mentioned the sexual harassment in her EEOC complaint. The district court granted Family Dollar's summary judgment, finding that plaintiff's allegations were not so severe as to alter a term, condition, or privilege of her employment. The Court of Appeals agreed. The Court stated that although White's conduct was ungentlemanly and inappropriate, Title VII is not a "general civility code for the American workplace."

Sure, the district manager's conduct was not harassment under Title VII, but to create a more productive work environment, employers should not allow this type of conduct in their workplace.  It is much easier to be civil than sorry. 

Here's an employment lawyer's worst nightmare:  the CEO for your favorite client asks you to draft employment claim waivers for an upcoming reduction in force.  For some unexplained reason, you fail to include any reference to the Age Discrimination in Employment Act in the waiver.  The ADEA does not even cross your mind until the last signed waiver arrives on your desk.  AAAUGHH - you wake up in a cold sweat.

Fortunately, the courts and the EEOC have provided ample direction for attorneys drafting waivers of employment claims.  I will be speaking on reduction in force issues at the Arkansas SHRM Employment Law and Legislative Affairs Conference in October, and in preparation, I'm reviewing the DOL's recent guidelines for enforceable ADEA waivers.  Here are some highlights:

• The waiver must be written in language that would be understood by the employee based on his or her education and business experience.
  

• The waiver must refer to the Age Discrimination in Employment Act by name.
  

• Employees must be advised in writing to consult with an attorney prior to signing the waiver.
  

• For an individual layoff, an employee must be given 21 days to consider the waiver.
  

• For a mass reduction, the employees must be given 45 days to consider the waiver.

• All employees over 40 who sign a waiver can revoke their acceptance within 7 days of signing the agreement.

• A waiver must be supported by consideration in addition to that which the employee is already entitled.
  

• Here's the hard part:  where a group of employees is being released, the waiver must provide information to employees over 40 regarding the "decisional unit," which is the group of employees from which the employer chose the employees who would be discharged.  The employer must disclose the eligibility factors for the program, the time limits of the program, and the job titles and ages of all employees who are eligible and ineligible for the program. 

Remember that some rights can't be waived, including the right to file a charge with the EEOC, future claims, claims or benefits that arise under unemployment compensation, workers compensation, the Fair Labor Standards Act, health insurance claims under COBRA, and vested benefits under a retirement plan governed by ERISA. Nonetheless, an employer can significantly reduce legal risk by seeking waivers as part of a reduction in force.  And, waivers will help you sleep better. 

July in Arkansas is hot.  As the days get longer and ties get loosened, employers find themselves responding to more complaints of sexual harassment. The good news for business owners and HR professionals is that it is much easier to handle an harassment complaint then, say, a wage and hour class action.  

The law requires an employer who receives an harassment complaint to perform a prompt, thorough and impartial investigation and to stop the harassing behavior. Everything gets a little trickier if a supervisor is accused, but in many cases, an harassment complaint can be put to rest with an investigation and appropriate disciplinary action.  To help ease your summer workload, here's a round-up of solid investigation and harassment policy advice.  Take care of that complaint today, and get out to the lake!

EEOC's Enforcement Guidance on Harassment by Supervisors. Check out section 1. e. regarding how to conduct an investigation.  

Workplace Investigations: Don't Forget to Communicate with the Complainant

Are Your Investigations Unbiased?

Remedial Action Must be Meaningful to Save Employer from Harassment Liability

Where There's Smoke, There's Not Always Fire

Suspended With Pay - A Call to Get the Investigation Done Quickly, Unless You Work for the Government....

Employee Handbooks: Anti-Harassment Tip Sheet

Text Message Harassment - No LOLing Matter

Text Harassment?

The press is unusually interested in an employment law case the US Supreme Court released on June 29, 2009, Ricci v. DeStefano, et al.  While it's an important employment decision, the case received extra attention because Supreme Court nominee Sonia Sotomayor was part of the three-judge panel that was technically reversed by the Supreme Court. Linda Greenhouse of the New York Times does a good job of sorting out the political implications of the case, but aside from all the political heat generated by the case, can employers find any light?  

In a nutshell, Ricci is a case of a promotion exam gone bad. The City of New Haven Connecticut instituted an exam to determine who among its firefighters should be promoted. The City went to great lengths to ensure that the test was fair to all applicants, but the test results clearly favored white applicants.  Faced with the serious possibility of litigation from minority applicants, the City threw out the test results.  For its trouble, the City was sued by the white firefighters who wanted the test results to stand. The Supreme Court ruled in favor of the white firefighters, finding that the City threw out the exam "because of race," and that the threat of litigation from the minority firefighters did not meet the new "strong basis in evidence" test that the court established with this case.

So what does this mean for employers?   Daniel Schwartz of the Connecticut Employment Law Blog posted a thorough analysis of what the Ricci case means for employers.  The most worrisome prediction that Schwartz sets forth is his warning that employers should now proceed with caution when conducting a disparate impact analysis for reductions in force.  Employers routinely have legal counsel determine if a reduction in force will impact any protected group more than whole of the employee population.  After this review, employers often adjust their selections to avoid legal risk. Schwartz suggests that this practice may now be discriminatory under Title VII, and I think he's right. Cue the scary music....  

Bottom Line:  An employer contemplating a reduction in force should work very carefully in establishing the selection criteria for the reduction because once the criteria has been applied, Ricci may not allow an employer to change the results because one protected group is significantly impacted.  Using criteria that is based on objective performance measurements and clear business objectives is a good start.  The reduction of entire departments or functions would also allow an employer to reduce headcount without tripping on to new legal risk.