Suits In The WorkPlace

UPDATED: Spank Me, Train Me, Pay Me

Fox News is reporting on a case that went to a California jury yesterday in which a 51-year old female employee claims she was spanked during a "team-building" exercise at her company.  According to the story:

Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against each other, according to court documents. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks.

One of my colleagues raised the question of why this case even got to the jury, because it was undisputed that both male and female employees were paddled with equal vigor.  Last time I checked, discrimination laws (even the ones in California) required a showing that something was done because of a person's gender, and it's a little tough to do that when males and females are being treated equally (albeit equally badly).

Regardless of the legal analysis, it seems like we're developing a theme for Administrative Professionals Week.

5/2/06 UPDATE:  JURY AWARDS $1.7 MILLION IN THIS CASE.  We just learned that the "six-man, six-woman California Superior Court jury awarded Janet Orlando $1.2 million in punitive damages and $500,000 in compensatory damages, including a $450,000 emotional distress award, $40,000 in future medical expenses, and $10,000 in lost wages."  For being spanked.  Voluntarily.  Along with men.  Fraternity pledges everywhere are rushing to seek legal counsel, and waves of class actions are expected.

Going Into Overtime on Overtime

Here's one that hopefully won't impact the release of Madden 2006:  In its second such case in less than a year, Electronic Arts, Inc. this week agreed to settle a class action overtime dispute with a group of computer programmers.  The current and former employee plaintiffs alleged that the gaming industry juggernaut misclassified them as exempt employees to satisfy California overtime laws and avoid paying overtime.  The class argued that, because they neither had creative control nor management responsibility, they were not exempt.  Maintaining its compliance with the law, EA agreed to pay $14.9 million to the class to settle.  This settlement comes on the heels of a similar one from last October, where EA agreed to pay $15.6 million to a class of graphic artists.

Never on Sunday

    I am occasionally asked about the ability of an employer to require employees to work on Sundays (or other religiously mandated "days of rest").  In some states, there are still vestiges of the "blue laws" that require businesses to be closed on Sunday -- when I practiced full time in Virginia, I was aware of the now-infamous "day of rest" rule that required employers to provide a day off per week, normally Sunday, unless the employee specified another day.  Fortunately for law firms and other watering holes for workaholics, the statutory exceptions to the Virginia rule swallowed up the protections of the law. 

     The general rule is that an employer must accommodate a request for a day off based on religious reasons unless it would constitute an "undue hardship."  This is not a particularly difficult test for an employer to meet -- demonstrated scheduling problems, seniority issues, or work output issues will usually suffice to show that giving a particular employee the same day off each week is an undue hardship for the employer. 

     But sometimes not.  The Second Circuit in a recent case involving Home Depot denied the employer's motion for summary judgment in a case where an employee required Sunday off with no exceptions.  Home Depot tried to accommodate the employee's request by scheduling the employee for a later shift so that he could attend worship services Sunday morning.  The court found this was not a reasonable accommodation because it ignored the employee's religious requirement that he abstain from all work on Sundays. 

    In other words, the court noted that an accommodation that does not address all concerns of the employee is not a reasonable accommodation.  This all-encompassing requirement will probably come as a surprise to most practitioners, who view an accommodation as a type of compromise in which neither side gets exactly what it wants.  Apparently, Home Depot felt this way.  Its factual defense, according to the court, did not include a developed argument regarding undue hardship, although undue hardship was mentioned in Home Depot's brief.  The Second Circuit did not consider this defense, but returned the case to the district court for a greater development of the record.  This is also surprising-- the Plaintiff in this case was pro se and there was apparently no factual rebuttal of Home Depot's assertions that continuously scheduling one employee for Sunday off would cause morale problems, increased overtime, and decreased productivity.

     Perhaps the short answer to the issue posed by the court is for an employer in a religious accommodation case to carefully assess alternatives, and develop a solid factual basis for whatever course of action it decides is appropriate.  Otherwise, the employer runs the risk of getting second circuit-guessed on appeal.  Baker v. Home Depot, No. 05-1069, Apr. 19, 2006. 

Rash Acts: Poison Ivy for Administrative Professionals Day?

Today is Administrative Professionals Day, a day when we ought to recognize and appreciate those folks in the workplace who, in general, keep us out of trouble on a daily basis.  It’s also a day when we should remember to show the respect and appreciation we have for those professionals.

Apparently, Scott Adkins didn’t get the memo.  In a recent 8th Circuit decision, Cottrill v. MFA, Inc., the court considered whether a supervisor’s daily use of a peephole to spy on female employees in the bathroom constituted sexual harassment.  According to the decision: 

The manager of the facility and the appellants’ supervisor, Scott Adkins, remodeled this restroom in 1997. During the remodeling, Adkins constructed a peephole through one wall in order to view Cottrill while she was in the women’s restroom. On the restroom side of the wall, Adkins installed a two-way mirror. The back of the mirror was covered with black paper except for the portion aligned with the peephole. The peephole went through the restroom wall to an adjoining room that Adkins used as his personal breakroom. There Adkins concealed the peephole with a bookshelf and paneling. Between 1997 and 2001,Adkins used the peephole to observe Cottrill in the restroom two or three times a day.

As if that weren’t enough, the plaintiff also alleged medical problems associated with her use of the bathroom:

Cottrill encountered a sticky substance on the toilet seat in the restroom several times between 2000 and 2002. During each year from 1998 to 2002, Cottrill suffered from rashes from approximately April until early September.

When the peephole was discovered, the employer installed a video camera in the breakroom to catch Adkins in the act, which they did.  He confessed, was fired and was reported to law enforcement officials.

Interestingly, the Court affirmed summary judgment for the employer in this case, ruling that the events did not create a hostile environment for Cottrill:

We first consider Cottrill’s hostile work environment claim. Cottrill was not aware of the peeping, stating in her deposition that she did not know that Adkins was viewing her. Because she did not subjectively perceive the peeping, Cottrill may not rely on the peeping to establish that her work environment was hostile.

In short, because she didn’t know about it, the court reasoned, she wasn’t being harassed.  The court went on to say that, although she was aware of the substance she believed was causing her rash (which she later asserted was poison ivy when a baggie with decomposed leaves and rubber gloves was found in – you guessed it – the breakroom), those events did not give rise to a hostile environment claim because they were not sufficiently severe or pervasive.

As a defense lawyer, I believe the court got this right on the law.  However, although they didn’t get to it in the opinion, I’ve got to believe that the court’s decision was influenced by MFA’s prompt response to this once they found out about it.  They started an investigation within an hour, caught the guy on tape, and rebuilt the entire wall within a couple of days.  Moreover, they fired him and turned him over to the police.  I suspect that if they had turned a blind eye or slapped Adkins on the wrist, we might have seen a different result.  But that’s just me.

Anyway, take a lesson on this Administrative Professionals Day from Mr. Adkins – a lesson on how not to treat your employees. 

New Guidance on Race Discrimination

The EEOC recently issued expanded policy guidance on the issues of race and color discrimination which plaintiffs’ attorneys are celebrating—indeed, the issuance of these new guidelines has fueled the fire, and plaintiffs’ attorneys are calling for more.  The 55-page document updates a chapter in the EEOC’s Compliance Manual and provides an explanation of the legal standards for evaluating race discrimination claims in recruiting, hiring and promotion, and provides examples of “best practices” to reduce the likelihood that an employer will commit a Title VII violation.  And although Title VII does not define race, this new EEOC document certainly does.  I quote the definition in its entirety because some of it just can’t be paraphrased:

Title VII’s prohibition of race discrimination generally encompasses:

      Ancestry: Employment discrimination because of racial or ethnic ancestry. Discrimination against a person because of his or her ancestry can violate Title VII’s prohibition against race discrimination. Note that there can be considerable overlap between “race” and “national origin,” but they are not identical.  For example, discrimination against a Chinese American might be targeted at her Asian ancestry and not her Chinese national origin. In that case, she would have a claim of discrimination based on race, not national origin.

      Physical Characteristics: Employment discrimination based on a person’s physical characteristics associated with race, such as a person’s color, hair, facial features, height and weight.

      Race-linked Illness: Discrimination based on race-linked illnesses. For example, sickle cell anemia is a genetically-transmitted disease that affects primarily persons of African descent. Other diseases, while not linked directly to race or ethnicity, may nevertheless have a disproportionate impact. For example, Native Hawaiians have a disproportionately high incidence of diabetes.  If the employer applies facially neutral standards to exclude treatment for conditions or risks that disproportionately affect employees on the basis of race or ethnicity, the employer must show that the standards are based on generally accepted medical criteria.

      Culture: Employment discrimination because of cultural characteristics related to race or ethnicity. Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech. For example, an employment decision based on a person having a so-called “Black accent,” or “sounding White,” violates Title VII if the accent or manner of speech does not materially interfere with the ability to perform job duties.

      Perception: Employment discrimination against an individual based on a belief that the individual is a member of a particular racial group, regardless of how the individual identifies himself. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.

      Association: Employment discrimination against an individual because of his/her association with someone of a particular race. For example, it is unlawful to discriminate against a White person because he or she is married to an African American or has a multiracial child, or because he or she maintains friendships or otherwise associates with persons of a certain race.

      Subgroup or “Race Plus”: Title VII prohibits discrimination against a subgroup of persons in a racial group because they have certain attributes in addition to their race. Thus, for example, it would violate Title VII for an employer to reject Black women with preschool age children, while not rejecting other women with preschool age children.

      “Reverse” Race Discrimination: Title VII prohibits race discrimination against all persons, including Caucasians.

The two categories that probably trouble me the most are “Culture” and “Perception,” because both have a high risk of abuse.  With enough creativity, anything can be linked to “cultural characteristics,” and those individuals who couldn’t otherwise produce evidence of race discrimination now have a much broader playing field.  Likewise “perception” essentially extends Title VII’s protection beyond those in a protected class.  In other words, it no longer matters if the person really is in a protected category, as long as the employer thinks they were.  An as if to validate my concerns, the EEOC itself noted that “everyone is protected from race and color discrimination” (my emphasis).  I think I just heard the hinges squeak on Pandora’s Box.

The EEOC did not stop there, however, and defined “color discrimination” as “when a person is discriminated against based on skin pigmentation (lightness or darkness of the skin), complexion, shade or tone.”  Again, it sounds to me like we are getting into very minute shades of grey, with a huge potential for abuse.  But wait, there’s more:  the EEOC also declared that color discrimination “can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity.” (Again, my emphasis).

Plaintiffs’ attorneys rejoiced (obviously) saying that the EEOC’s initiative “should reinvigorate” the enforcement and litigation efforts at the commission, and that the EEOC should go further and “exhibit bold and innovative leadership in its enforcement activity.”  Yikes.  Even the panel members of the EEOC unanimously agreed that more “outreach” programs to minority communities and their leadership is essential.  I suppose the best thing for an employer to do at this point is to read the guidance document and go through it with a fine tooth comb to ensure that they are keeping up with the changes in the EEOC, lest you become the prime example of the EEOC’s “reinvigorated initiative.”

Making it up about makeup?

Whistle blowing while you work

    The main problem is that the law is not well developed and SOX claims can vary wildly in terms of validity.  One area of dispute is the "reasonableness" of the belief by a plaintiff that the conduct being reported constitutes a SOX violation.  To state a claim, SOX does not require that the employee's belief be correct, but only "reasonable."  The plaintiff's bar is arguing that reasonableness is in the eye of the beholder and that if an employee believes he's looking at a potential SEC or SOX violation, then that should be enough.  The danger, of course, is that such a broad definition of reasonableness effectively makes employees the definers of their own litigation, an almost impossible standard for an employer to defend against.

     Adverse employment action under SOX is also a problem because it is clear that the concept is broader than it is under Title VII.  Specifically, an adverse action under SOX could be considered to be any act that might diminish the likelihood of an employee’s reporting bad behavior.  Obviously, this could include everything from outright termination to suggestive raises of an eyebrow during the course of an interview.  Again, an almost impossible standard for the average employer to meet.

     Finally, even though the Sarbanes-Oxley process typically begins with the Department of Labor, the quick move to federal court that is available under SOX opens up a variety of pressure points against a publicly traded employer.  Not the least of these is that copies of SOX complaints are routinely sent to the Securities and Exchange Commission and available to investors and stockholders.  Obviously, an insider claim that a company is engaging in fraud or other activity that might cause the shareholders concern can be a powerful weapon in forcing a settlment of these cases. 

     Any publicly held company that does not have a SOX whistle blowing compliance mechanism in place should move now to get one.  This situation will only get worse as these claims gain more notoriety, especially in the management classes of a business.

She Hit Me First: Escalation equals differentiation

    An unpublished 11th Circuit case, Gamboa v. American Airlines, does a nice job of pointing out the discretion allowed an employer in enforcing its disciplinary policies.  Two employees, a male and a female, got into what was described as an "altercation."  The airline had a witness statement indicating that the female, Gamboa, physically struck her coworker, but that he did not make contact with her.  The 11th Circuit affirmed the district court's summary judgment ruling, noting that although Gamboa disputed the witness statement, that was not enough to raise an issue of fact for summary judgment purposes.  To quote the court, "An employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct."  In other words, it wasn't enough for Ms. Gamboa to dispute the version of facts that the employer received.  Instead she had to show that the employer itself did not believe the reason it gave for firing her and not her male coworker.  The distinction between the two -- the fact that she made physical contact and the coworker did not -- and the fact that the employer believed that distinction existed,  is a sufficient basis for the different discipline. 

Should I stay or should I go?: The FMLA notice battle just got a lot tougher

     The Family and Medical Leave Act is rapidly morphing into a statute that sets impossible standards for employers.  Witness a recent case out of the Northern District of Illinois, Lozano v. Kay Mfg. Co., No. 04 C 2784, March 28, 2006.

     Lozano worked for Kay for about three years before he was fired.  After his first year on the job, his performance deteriorated and he was placed formally on probation for six months, ending in January 2002.  His performance evaluation indicated he was performing "below expectations."  Lozano went to the hospital twice in January and February of 2002 and was diagnosed with a series of ailments including major depression, panic attacks and delirium tremens.  He missed a substantial amount of work that the employer covered with its short-term disability leave, noting that Lozano had a variety of psychiatric and physical health problems.

     When Lozano returned to work, he continued to have performance problems.  He was discharged following several more miscues.  During his termination meeting, he walked out of the room and retreated to the employee locker room where he curled up in a fetal position.  Unsurprisingly, he was then admitted to a psychiatric ward for treatment but when he was released, he sued Kay under the FMLA and claimed the company violated his rights by not offering him medical leave, instead of terminating him. 

     Kay, not surprisingly, moved for summary judgment and alleged that Lozano had never requested leave or given notice of his need for leave.  Following a recent 7th Circuit case involving psychiatric disability, the judge found that the employee "informed" his employer of his need for FMLA leave by advising the employer that he was undergoing psychiatric care in the months prior to his discharge.  The court noted that there might have been some report by the plaintiff that his mental condition was affecting his work, but Lozano never made a claim for FMLA leave.  The court then made the interesting distinction that, while a sudden change in behavior would provide notice of the need for FMLA leave (notwithstanding the fact that a sudden change of behavior could be the result of almost anything in addition to a medical condition, e.g., getting drunk, having a drug addition, undergoing marital difficulties, etc.) the gradual changing nature of Lozano’s performance difficulties created an issue of fact as to whether the employer actually had notice of an FMLA-qualifying medical condition. 

     What's an employer to do here?  Involuntarily place the employee on FMLA leave in lieu of termination?  Even when the employee fails to ask for FMLA leave, and insists on going back to work?  This ruling represents another expansion of liability under the FMLA in a case where the employer apparently just followed its normal disciplinary procedures.  What this case (and its predecessor in the 7th Circuit) means is that an employee who has notified an employer of a problematic health condition effectively makes herself unfireable, at least until the employer takes the additional steps of inquiring about her health status even if the employee herself does not link her health issues with performance problems.  That is a dangerous precedent for any employer.

A Little Too Glad

Many employees wish that their boss was dead on one or more occasions, but when it actually happens, it's probably not a good idea to celebrate too much around the workplace. It's especially not a good idea to couch the death of your supervisor as some kind of retribution from God.

That's what happened when the supervisor of a Florida hospital worker suffered a stroke during a routine hernia operation and died shortly thereafter. West v. Shands Hospital & Clinics, Inc., N.D. Fla., No. 1:02-cv-00087, March 23, 2006.

The plaintiff, who had many difficulties with her supervisor, began telling her coworkers that the supervisor's stroke was a sign of God's "wrath" and an indication of Divine judgment. When the supervisor died, the employee noted that God's vengeance was served and "victory is mine" to her coworkers. Her activities caused a major disruption in the office, with some shocked employees unable to work as a result of the Plaintiff's celebration. The plaintiff was subsequently terminated for her conduct, and sued the hospital for race and religious discrimination under Title VII.

The district court had no trouble granting summary judgment for the employer, finding that there was no pretext in the employer's stated basis for termination, namely that the plaintiff was fired for openly celebrating the death of a coworker with whom she did not get along. The fact that there was a religious element to the plaintiff's celebrations did not protect them or her. The court specifically noted it was not the religious component of plaintiff's comments that prompted the termination, but rather the inappropriate celebration of the supervisor's demise. Given some of the other silliness that occurs in the employment arena, it's nice to see that this type of ghoulish behavior is still sanctionable by an employer.

Third Circuit Leaves Hershey with Bitter Taste in Its Mouth

NOTE:  I'm posting this for Lou because he can't find the "ON" switch on his laptop.  Direct all hostile retorts to him.

This week, the Third Circuit gave Hershey something to chew over on its way to trial, and it wasn’t milk chocolate. In an effort to minimize injuries caused by repetitive stress, Hershey began a rotation policy for its candy inspectors in 2001. The plaintiff, an inspector of York peppermint patties, refused to participate in rotations that aggravated her chronic back problems. Job rotations, that is. She did, however, offer to rotate to tables that accommodated her disability. Hershey refused. Shortly thereafter, the plaintiff went on disability, stating that she was unable to work in the plant. Two years later, she was fired.

The district court ruled in favor of Hershey, holding that the rotation was an essential function of the job and that an exemption from the rotation would create an unreasonable risk of increased injuries for plaintiff and her colleagues. The Third Circuit, however, disagreed and decided instead that whether the accommodation that the plaintiff had proposed was reasonable was for a jury to decide.

My immediate reaction to this case isn’t positive. One of the cornerstones of the ADA is that the employer gets to determine what is and isn’t essential to perform a job. As long as the employer consistently requires employees to do a certain task as part of the job, then the ADA doesn’t allow the court to rewrite job descriptions. To have it any other way would turn the courts into super personnel agencies, something no court wants to become.

But here, the court tells Hershey, in effect, “We don’t agree with your internal policy of requiring the ability to perform different tasks as part of the essential job requirements for the inspector position. We think you should make the job less demanding, irrespective of the fact that all the other inspectors have to meet this requirement.”

I hope the jurors like chocolate.

Turner v. Hershey Chocolate USA, No. 04-4674 (3d Cir. Mar. 20, 2006)

Finally - A Story to Match Our Masthead

Last week, the Kansas Supreme Court joined the ranks of over twenty other states in recognizing that innocent victims of horseplay in the workplace may be entitled to workers’ compensation. Coleman v. Armour Swift-Eckrich, Kan., No. 94, 324 3/2406.

The case involves a plaintiff who leaned back in her chair while waiting for a meeting to start. The chair, of course, had little wheels on the bottom. Suddenly, it was like the plaintiff was back in fourth grade—a colleague grabbed the chair, and the plaintiff hit the floor (see image above). Who says work’s no fun?

The state administrative law judge denied the plaintiff’s claim for workers’ compensation. In so doing, the judge relied on a decision from 1918 which, until now, was the last word on the subject in Kansas. To give you some idea of the vintage of that decision, it involved a laborer who “playfully threw mortar into the eye” of a coworker.  (Happens all the time around here at the law firm.)

The Kansas Supreme Court reversed, thereby aligning itself with the modern trend in this goofy area of workers’ compensation law. If you’re an employer, nail those chairs to the floor before it’s too late. And if you haven’t done so already, make sure all that extra mortar is under lock and key.

Tell us what you think.  Should employees who are injured at work because of the horseplay of another employee, and not because of physically unsafe working conditions, be entitled to worker's comp?  How far should an employer have to go to prevent this horseplay?  What's reasonable?  Click here to add a comment and speak your piece.