Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

October 2005 - Posts

Blue Genes

IBM announced earlier this month that it would change its policies to preclude the use of genetic information in making its employment decisions. This has opened the door to much speculation about those employers who are not so far out ahead of this issue. While not prevalent now, the capability of genetic testing on a more widespread basis is just around the corner. The fear is that employers will make hiring decisions based on the results of genetic tests, such as by declining to hire someone with a gene that increases their likelihood of getting a certain disease. As with many other kinds of workplace technology, the law will need to catch up. The Americans with Disabilities Act, for example, only protects employees with a disability, defined as a physical or mental impairment which substantially limits a major life activity. Thus, someone who is “at risk” of having a disease isn’t protected under current law, but could be identified by the results of a genetic test. Aside from its financial interest in genetic testing, IBM’s move strikes me as a prudent way to avoid a lot of the confusion and uncertainty that will shroud this issue over the coming months.
posted Tuesday, October 25, 2005 6:31 PM by Rod Satterwhite with 1 Comments

Behind the Curtain

An article in the Wall Street Journal on October 4, 2005, provides a revealing, and almost certainly inadvertent, view of the thought process operating at the senior levels of the EEOC. In the Managing Your Career column, Joann Lublin writes about various strategies for women looking for new jobs after reporting sexual harassment by their coworkers. Lublin notes that "[i]t's usually a good idea to avoid detailed discussions with prospective employers about your mistreatment." But she then goes on to note that sometimes candor about a situation might make sense if you are looking for work within the same industry. Here's where it gets interesting. Lublin quotes Elizabeth Grossman, Acting Regional Attorney at the EEOC in New York, giving suggestions on how to set up a potential employer for a retaliation claim. "Hiring managers must know about your 'protected activity' before you can prove a retaliatory rejection, explains Elizabeth Grossman ... 'if you tell them, you [could] have a slam-dunk case.'" In other words, at some point in your interview blurt out that you filed a sexual harassment claim, and you can insulate yourself against not being selected, because the potential employer is now "inoculated" with knowledge of your protected activity. If you're not hired, file an EEOC charge and sue.

While it's refreshing to have my paranoia reinforced occasionally, what the EEOC attorney appears to be proposing is simply outrageous. The idea that one could effectively insure either a positive hiring outcome or a successful retaliation case by poisoning the well with a prospective employer with planned references to charges filed, disabilities, age or FMLA issues reeks of gamesmanship, and is precisely the kind of thing that causes judges to look at these cases with a jaundiced eye.

Let's hope this remark was taken out of context. Nevertheless, it's another example of conduct in this area by people looking for a litigation claim rather than a job.

posted Tuesday, October 11, 2005 3:31 PM by Lou Michels with 4 Comments

Knight Riders

Apparently there is a lot more to being a medieval knight than riding around in polished armor to the adulation of a crowd, battling the occasional wizard and being waited on by serfs and wenches (not my term, folks).  You have to take more than your fair share of lumps as well.  In a case widely reported in the Chicago area, several former knights (late knights?) of the Medieval Times restaurant chain are suing for retaliation after they were fired when they filed workers compensation claims.  For the uninitiated, a Medieval Times show involves full-speed horseback riding in armor, jousting with mock-up wood lances (that appear to break fairly easily), and orchestrated fights using passable replicas of broadswords.  As befits an entertainment venue involving mounted combat, there's a fair amount of action involving people falling off horses, which is apparently where most of the serious injuries alleged in the lawsuit occurred.  The allegations of the complaint revolve around a memo allegedly sent out about the company's concern with increasing costs of workers compensation claims.  Allegedly the memo caused Medieval Times managers to threaten employees with termination if they filed workers compensation claims for their injuries.  The plaintiffs indicate this is exactly what happened to them.  The company, of course, denies what would be a clear violation of state law, so this might go all the way through to litigation after all.  But it does seem that a company putting on these kinds of shows would expect a lot of long-term injury claims given the physical demands on the employees.  We'll update this case as it develops, if for no other reason than it gives us the opportunity for lots of bad puns and double entendre remarks.
posted Friday, October 07, 2005 11:48 AM by Lou Michels with 0 Comments

Coming to a Big Brother Near You

On June 6, 2005, the Department of Justice put a notice in the Federal Register asking for comments on a proposal to allow employers to access FBI databases for applicant screening and other job-related purposes.  Although DoJ's effort is part of a wider, Congressionally-authorized program to standardize existing background checks required by statute, the prospect of employers using federal criminal databases as part of their business operation raises a vision of the corporate state that I hoped was some time away. 
 
In truth, of course, employers use criminal databases for background checks all the time.  These are typically done at a local level through state databases of arrest and conviction records.  Some FBI arrest and conviction records are available through state agencies, but not to employers directly.  Having some familiarity with criminal databases from my previous work as a prosecutor, I have real concerns about over-all accuracy and scope of the information available.  Moreover, these records typically contain information that could taint any hiring decision, such as arrest records, which are not supposed to be considered in any way under federal or some state anti-discrimination laws.  How much of this information should be disclosed, in what form it should be disclosed (it takes some familiarity or experience to evaluate FBI records), and how much privacy people give up when they apply for work are all issues that I hope get wrung out before this program moves forward. 
posted Friday, October 07, 2005 11:46 AM by Lou Michels with 0 Comments

Justice Roberts Jumps in with Both Feet

Newly sworn in Chief Justice John Roberts heard his first arguments this week, including a case dealing with the FLSA.  There is currently a circuit split over whether or not the time spent donning and doffing protective gear is compensable under the FLSA.  The 1st Circuit, in Tum v. Barber Foods, 360 F.3d 274 (2004), held that it was not, but the 9th Circuit, in Alvarez v. IBP Inc., 339 F.3d 894 (2003), held that it was.  The question hinges in part on whether the activity at issue is "integral and indispensable" to the actual work involved, under the US Supreme Court holding in Steiner v. Mitchell, 350 US 247 (1956).  The Chief Justice questioned counsel on the issue's interplay with existing regulations on the compensability of walking between workstations and waiting in lines, as well as the relationship between "integral and indispensable" activities and "primary activities" cited as compensable in federal regulations.  Nothing like a little heated debate for your first day on the job.
posted Thursday, October 06, 2005 9:38 AM by Rod Satterwhite with 0 Comments Rated Good [4 out of 5].

Equal Opportunity Harassment

The Seventh Circuit just ruled that a husband and wife could both sue the same employer for sexual harassment under Title VII of the Civil Rights Act of 1964.  In Venezia v. Gottlieb Memorial Hospital, (No. 04-1976), a married couple sued their employer – a hospital – for hostile environment harassment.  Both claimed they were subjected to inappropriate comments and material at work from some of the same people.  While there were some differences in the exact way the two were treated, there was substantial overlap regarding how they were allegedly harassed and who was harassing them.

The issue, of course, is whether this behavior could possibly have been “because of” gender when both the husband and wife were subjected to it.  The court said yes, concluding that it’s possible that the husband was harassed by some people because he was male and the wife was harassed by other people because she is female.

To me, this is a stretch.  There’s no question this behavior was offensive, but even a brief review of the facts indicates that the same group – the husband’s co-workers – was engaging in nearly identical behavior because they thought the wife pulled strings to get the husband his job.  So, they teased them both – asserting that the wife had engaged in sex with the boss in order to secure her husband a job.

To be illegal under Title VII, harassment has to be because of the victim's gender.  There’s certainly enough of a common nexus here of behaviors to allow the defendant to argue that this was not based on the gender of either employee.  When a male and a female are treated the same, it’s not gender discrimination.  Here the husband and wife were both treated badly.  While the behavior was reprehensible, it wasn’t illegal.

posted Saturday, October 01, 2005 12:26 AM by Rod Satterwhite with 1 Comments Rated Average [3 out of 5].