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.

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.

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. 

While signs of economic recovery are beginning to appear, some employers continue to look for ways to cut costs. Most employers seeking to reduce costs at least consider a reduction in force. While a reduction in force can provide significant impact to the bottom line, this strategy is not without risk. 

Every employee who is impacted by a reduction will invariably ask "why me," and sometimes the answer that the employee settles upon is his or her age, gender, race, religion, disability, etc. While no reduction in force is risk free, there are best practices that can reduce an employer's legal risk. 

I'll be speaking on reductions in force at the Arkansas SHRM Employment Law and Legislative Affairs Conference on October 1, 2009, and as I prepare, I have been reviewing all the excellent commentary on the subject.  Here's a sample:   

Preparing for and Managing a Reduction in Force

Reducing Risks in a Reduction in Force - Is There a Perfect Solution

Reduction in Force Guidelines

Reducing the Legal Risks Associated with a Reduction in Force

Top 10 Layoff Tips

How to Lay People Off

Furloughs: An Alternative to Layoffs

RIF's: Beware the Hidden Costs

Reductions in Force: Top Considerations

 

Small employers are often relieved to hear that they are not governed by Title VII because they have fewer than 15 employees. Also, the Family Medical Leave Act only applies to employers with at least 50 employees. But, an employer can inadvertently reach these numbers when more than one company is owned and managed by the same entity. 

A recent case from an Arkansas federal district court demonstrates that courts will look at all related companies to determine whether an employer has 15 employees and is subject to the requirements of Title VII.  Hardy v. Town of Perla Water Ass'n.  One company plus another company could equal 15 employees.

In the Hardy case, an employee sued the Town of Perla Water Association and the Mayor of Perla for racial discrimination, hostile work environment, and retaliation under Title VII. Because the Perla Water Association had only six employees, the court looked at whether the company should be combined with the City of Perla to determine whether the company was an employer under Title VII.

The court in Hardy first set out the factors to consider when combining to two private companies for Title VII purposes: 1) interrelation of operation, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control.  FMLA regulations set forth the same test to determine whether two companies should be combined to determine whether an employer has 50 employees and is governed by the FMLA. 29 C.F.R. 825.104(c)(2). 

The Hardy court rejected this test because the town of Perla was a public entity rather than a private entity.  Instead, the court looked for "indicia of control," which includes the authority to hire, transfer, promote, discipline, or discharge, establish work schedules, direct work assignments, and the obligation to pay. The court found indicia of control between the two entities, but excluded volunteer fire fighters and city council members from the count, leaving too few employees to create Title VII liability.  Therefore, the employee's claims were dismissed under Title VII. 

Bottom Line:  The Hardy case demonstrates that a court will look past corporate structure when determining the number of employees for Title VII purposes.  Employers should be particularly concerned about related companies that could be combined to group more than 50 employees, and therefore, become subject to the FMLA. Conduct that will create liability under Title VII is usually pretty offensive and careful employers, even those with fewer than 15 employees, take steps to avoid that conduct in their workplaces.  But, the FMLA requires employers to provide job-protected leave to qualifying employees, along with specific notifications, which most employers would not do if they were not subject to the FMLA. So, take a look at any related companies and do the math.  Don't be unprepared when 1 + 1 = 50.    

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.

The Eighth Circuit Court of Appeals reaffirmed its previous holding that a prima facie case for retaliation requires a "materially adverse" action that produces "injury or harm." Littleton v. Pilot Travel Centers, LLC.  The court in Littleton found that an employer's corrective memo to an employee did not constitute retaliation.  

In Littleton, the employee filed a charge of discrimination with the EEOC alleging that he had been denied pay increases because of his race. Seven months after the charge was filed, the plaintiff was disciplined for inappropriate comments at a customer location.  The court found that the corrective notice did not impact the employee's career and that too much time had elapsed between the time of the charge and the corrective notice to create a causal connection.  One interesting piece of the court's analysis included the court's reliance on a supervisor's informal investigation of the complaint about the plaintiff's conduct. The court found that the company acted reasonably when it based its discipline of plaintiff on informal, undocumented employee interviews conducted by the supervisor.    

Bottom Line:  Employers in the Eighth Circuit, including Arkansas, can continue to issue employee discipline that is in accordance with the employer's practice, even after an employee has filed a charge of discrimination.  When an employee files a charge or lodges an internal complaint, the employer should proceed cautiously with future discipline, but the company is by no means barred from taking disciplinary action.