Suits In The WorkPlace

Men Behaving Badly

When Employing Teenagers is a Bad Idea

     Employers that have a workforce of high school or adolescent employees often face unique problems.  Most of these revolve around the fact that high school students are not exactly socialized to a business-type environment, although workplace laws and regulations apply equally to them.  High school students engaging in high school behavior in a workplace is a prescription for disaster, as a Chicago-area ice cream store discovered recently. 

     The plaintiff, a then-16-year-old ice cream scooper, alleged she was sexually harassed to the point of sexual intercourse by her 25-year-old shift supervisor.  Because the plaintiff was only 16, the supervisor was convicted of statutory rape, although the sex was consensual.  Citing her age and concerns for her psychological well being, the plaintiff refused to be interviewed directly by the EEOC after she filed her charge, although she agreed to answer questions through her attorney.  The Commission instead dismissed the case and issued a right-to-sue letter. 

     The district court granted summary judgment for the ice cream store, on the theory that plaintiff failed to exhaust her administrative remedies because: she refused to "cooperate" in the EEOC investigation, her relationship with her supervisor had been voluntary and the conduct alleged occurred, for the most part, outside the workplace.

     The Seventh Circuit reversed.  The court first found that exhaustion of administrative remedies under Title VII did not require a charging party to cooperate with the EEOC in its investigation.  The court noted that plaintiff "exhausted" her remedies by filing a charge of discrimination and waiting until the Commission issued its right-to-sue letter.  In other words, there is no requirement that a charging party do anything other than these bare, minimal requirements to complete the administrative prerequisites to sue. 

     In reviewing the sexual harassment claim, Judge Posner noted that although Title VII requires sexually harassing conduct to be "unwelcome", where the plaintiff is below the state statutory age of consent it is impossible as a matter of law for her to acquiesce to sexually harassing conduct.   Posner also said that the consensual nature of the conduct could be used to reduce defendant's damages, but that as far as liability went, the employer could not offer consent or participation in the conduct as a defense for an underage plaintiff.

     Posner next found that even though Title VII relates to workplace conduct, sexual acts "need not be committed in the workplace, to have consequences there."  This is not news to those of us who practice in this area, but it bears reinforcing again.  Where a supervisor engages in workplace conduct that culminates in sexual activity outside the workplace, then a sexual harassment charge can fairly encompass all of the activities regardless of location.

     Posner closes with direct and cautionary language:  "An employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment."  Under the circumstances in this case, Posner and the Seventh Circuit had little difficulty finding that the allegations were not proper for summary disposition, but instead needed to be decided by a jury.

Snacking on a Podcast or a Mobisode?

    A recent labor dispute in the entertainment industry provides yet more evidence as to why all of us are becoming obsolete at an increasingly faster pace.  The Screen Actors Guild, Directors Guild of America and the Writers Guild of America were in a dispute with studios over so-called "snackable" video programming.  The "snacks" are typically videos designed to be viewed on cell phones or wireless PDA devices.  Content (shows are not even called “programs” anymore) that is “snackable” runs for several minutes, or about the average time you would be waiting in line to get your daily coffee-flavored milk drink.  Highly popular television shows are also broadcast in separate mobile phone formats known as "mobisodes."  Along with podcasting and video downloads for cell phones and other small screen devices, these types of programs introduce new issues for labor negotiations as the unions involved try to get their arms around the profits and income streams these snacks provide.

     I now feel completely antiquated.  I thought it was pretty neat to be able to get my emails and attachments through my Treo 650.  I now realize that instead of walking around in Tomorrowland, I actually live in Jurassic Park. 

     I suspect most of my clients will be thrilled to find that their employees no longer need to use their computer workstations to view video downloads, the latest Jack Bauer episode, or to learn if those air crash survivors ever get off that stupid island.  I guess we'll just have to make work more entertaining.

Enough Is Too Much

Let's Hope the Judge Isn't a Michigan Fan

    The old song lyric goes, "There are none so blind as those who will not see."  A federal court here in Chicago will get a chance to test that adage in a case involving, of all things, a one-eyed football official.  The plaintiff is a former Big Ten football referee who lost his eye six years ago in an accident.  According to the lawsuit, the referee informed the head of Big Ten officiating about the accident and his condition and was told to press on.  He was allowed to officiate games over the next six seasons, including two Orange Bowl games, apparently with no one other than the Big Ten official knowing about the referee's condition.  However, when a reporter called the head coach at Michigan and told him that his games were being officiated by a ref with only one eye, the coach contacted the Commissioner of the Big Ten and asked, basically, what the heck was going on.

     After the plaintiff was removed from his job, he sued alleging a violation of the Americans with Disabilities Act.  While I can empathize with the legal aspects of this case -- after all, the guy apparently worked for six years without anyone finding out he had monocular vision -- the idea of having a referee in high-profile sporting events with only one eye creates obvious problems.  Notwithstanding whatever adjustments you could train your mind to make, the bottom line is that one eye is not as good as two.  Even with other officials on the field to assist with the calls, I don't know of a single coach or player willing to add new meaning to the term "judgment call" by imposing a physical limitation over the top of the normal limitations on perception.  There are good reasons, for example, that the Department of Transportation does not allow drivers with only one eye to hold commercial vehicle licenses.  There are plenty of situations where football officials are positioned in such a way so that only one of them has a clear view of an event on the field and has to make a call.  Why program a major limitation into those situtations?  Especially when there are already enough claims that refs are unable to see?

     On the flipside, apparently this condition was not so problematic that it caused a consistently poor performance on the part of the official.  Moreover, given the prevalence of television at Division 1 games, would it be a reasonable accommodation for the Conference to adopt some type of instant replay provision to accommodate the official's disability?  While the refs may be badly positioned to see a call, it's rare that there is not a TV camera somewhere with an adequate view of the action to sustain or overturn the on-field decision.  Should the conference be required to put instant replay provisions in effect for this gentleman?

     One thing's for sure -- every single game this gentleman officiated over the last five years is going to be reviewed and re-reviewed and any judgment calls he makes will be examined carefully.  I can see the Conference saying that it's entitled to have the very best people who are fully capable of perceiving everything around them on the field for these games.  At the same time, the fact that this gentleman threw the flag and tossed the coin adequately for five years is a strong argument that he was able to perform the essential elements of his job, without an accommodation.

     Stay tuned.

When Joanie Comes Marching Home Again

    The Uniformed Services Employment and Reemployment Rights Act (known by the cumbersome acronym USERRA, pronounced "you-sarah") is a relatively recent statute that has not been the subject of widespread litigation in the courts until the events following September 11, 2001.  Now the Fourth Circuit has provided some very clear guidance on how the rights established by this law apply. 

    The case involved a plaintiff who worked for Booz Allen and was also a petty officer in the Naval Reserve.  Following a 5-month active duty tour, the plaintiff alleged she was discriminated against and then discharged as a result of her military status and in retaliation for raising a claim of discrimination because of that status.  She lost on all counts at summary judgment and appealed.

    The 4th Circuit first noted the statutory USERRA design, section by applicable section.  USERRA provides for reemployment rights for reservists who are required to leave their civilian jobs.  The court found that this section of USERRA -- 38 U.S.C. 4312-- is limited in that it serves only to guarantee a right to reemployment without regard to the employer's intent.  Noting that other provisions of USERRA provided protection for the continuing reemployment relationship, the court held that 4312 only provides protection at the moment of reemployment.  It does not, for example, prevent the employer from terminating a returned service member the following day after returning to work, or even later in the same day.  Accordingly, a violation of this particular section of USERRA is only properly alleged with regard to a complete failure to reemploy a returning service member.

    The court found that Booz Allen had properly reemployed the plaintiff to her prior position and the the act she complained of occurred significantly after her return.  Accordingly, there was no violation of Section 4312.

    Plaintiff's claim for actions that occurred after she was reemployed fall under Section 4311 of the statute, which prohibits denial of employment "benefits" because of military status.  Although the court agreed that plaintiff's job changed following her return to work, the change was relatively slight and actually began before she was deployed, as a direct result of changes in the business of Booz Allen.  Under these circumstances, the court said there was no issue of material fact indicating a violation.  Plaintiff also alleged that Booz Allen changed her work schedule making it difficult for her to attend evening classes.  While the court noted that a favorable working schedule is a benefit of employment, it said that there was no indication that the 2-hour schedule change, which did not alter the total number of hours worked and which plaintiff had worked occasionally prior to deployment, was made considering her military service.

    The court also examined the protections under Section 4316 of the statute, which alters the at-will employment status for a returning veteran.  During the statutory period (which can extend for up to a year), an employer cannot discharge a returning veteran except for cause.  The burden is on the employer to establish that the discharge was reasonable, making summary judgment in these cases much more difficult for an employer.  However, where an employer has uncontroverted evidence of an employee's misconduct, the court found that it was "objectively reasonable" for Booz Allen to make the discharge decision that it did.

    Again, note that the standard under this section of USERRA is "objectively reasonable."  This is a higher standard than a typical employment discrimination test and is a strong deterrent against terminating returning veterans within the statutorily protected time frame.

    Plaintiff's retaliation claim under Section 4311 failed because she could not show that her complaints that her USERRA rights were being violated, which occurred shortly before her termination, were a motivating factor in the decision.  As with Title VII retaliation claims, the court noted that where gradual adverse job actions begin well before the plaintiff engages in protected activity, an inference of retaliation does not arise from the timing of the complaint vis a vis the adverse action.

    This is an extremely well-reasoned opinion that provides plenty of guidance for employers in dealing with problem employees who happen to be reserve force members.  In short, most, if not all of the same guidance relating to Title VII problems applies even more so to USERRA because of its increased burdens on the employer to justify adverse employment actions.

No Good Deed Goes Unpunished

Check out this proof of the first law of employment litigation -- "No good deed goes unpunished". Plaintiff's job was to interview applicants for state health benefits, but due to agoraphobia and panic disorder could not meet with people face to face. The agency accommodated him by assigning him cases that could be handled entirely by phone, doing so for fifteen years. Plaintiff then applied for a promotion and was told that due to the absence of in-person interviewing experience he was not eligible, but if he were willing to undertake such duties he would be considered. This, needless to say, caused the hypersensitive plaintiff to go into a tail spin and leave work remaining on "stress leave" continuously since sometime in 2004. The jury of his peers awarded him over $6,000,000, proving the second law of employment litigation -- things in California are just different. The judge being "rational" and concerned about evident jury misconduct, reduced the award to $2,500,000. Plaintiff's counsel then asked the court to award $1,300,000 in fees by applying a multiplier, apparently for his extraordinarily good luck, thus proving the third law of employment litigation -- a Plaintiff's lawyer knows no shame. The court, being rational again, reduced the multiplier to a factor of 2 and awarded almost $900,000. Thus, the taxpayers of Sonoma county get to fund a $3.4 million dollar lottery payment to a guy who, unable to interview people, felt he was the perfect candidate for a job that involved, well, interviewing people.  The entire matter thus proves the fourth and ultimate rule of employment litigation, first enunciated by a distinguished but anonymous jurist -- This ain't about justice, it's only about the money.  Alberigi v. Sonoma County, Cal. Super. Ct., No. SCV-233788, 6/20/06.

Special thanks to our cynical but accurate partner Bob Zielinski for providing this entry.

The Truth and Nothing But

      A key to the analysis of almost any discrimination case is whether an employer’s given reason for taking action against an employee is the real reason, or a lie that covers up intentional discrimination in the decision.  This is known as a pretext analysis, i.e., is the employer's given a reason a pretext that hide discriminatory bias?  Like most other aspects of Title VII litigation, this particular concept has been beaten to death repeatedly by practitioners and courts alike.  Judge Posner of the 7th Circuit, with his usual clarity, recently issued an opinion that focuses directly on the pretext analysis, and contains valuable insights for practitioners and their clients alike.

     The subject case involved the termination of an employee fired on the basis of a complaint of sexual harassment by a coworker.  Following summary judgment for the employer, the employee appealed on the grounds that the employer's investigation of the sexual harassment complaint was "shoddy." 

     Posner cuts right to the heart of the matter, noting initially that the issue in any employment discrimination case is not whether the employer's decision was correct, but whether its basis was the "true reason" for the employer's decision.  In other words, as long as the employer honestly believes the reason it gives for making the termination decision, it doesn't matter whether the employer was "mistaken, cruel, unethical, out of his head, or downright irrational."  What matters is whether the employer believed the reason it gave for the termination.  Posner discusses variations on this theme, such as the so-called sufficiency test, which states that discrimination can be inferred when the employer's given reason was insufficient to motivate its decision.  Posner convincingly points out that these variations are simply different ways of looking at the key issue, and generally operate to confuse the inquiry by the courts. 

     The point in this decision for employers and their counsel is to once again demonstrate the importance of communicating the real reasons for an employer's actions, from the initial decision point forward.  Some employers do not want to tell an employee that she is being fired for incompetence, or misconduct, or some other unpleasant reason.  But giving an employee a reason for her termination that is not accurate, or even worse, putting an inaccurate justification in a formal position statement to the EEOC or a court document, is an almost guaranteed way to end up in litigation down the road.  An employer that gives inconsistent stories about why it took certain actions is an employer that will be viewed by a court and a jury as having something to hide.  And that something is invariably presumed to be a discriminatory animus once the case gets to trial.

Social Engineering Run Amok

Not content with keeping the citizens of Chicago from eating foie gras and contemplating the removal of trans fat by decree from all Chicago area restaurants, some Chicago aldermen have decided that large retail establishments are "a danger to both our communities' economic standards and our civic life."  Several of them have introduced an ordinance specifically designed to increase the cost of goods to consumers by introducing an artificially high wage and benefit requirement, undercut a private employer's ability to regulate public demonstrations on its property, and require the employment of convicted felons who can present a letter signed by anyone else attesting to their reformed character.

     The proposed Chicago ordinance is clearly aimed at big-box retailers such as Wal-mart, Target, and other large retailers (but which conceivably could apply to stores like Crate & Barrel or Ikea, or other large showroom type facilities with 75,000 sq. ft. or more).  The aldermen, who are generally beholden to the interests of union organizers, also will force store owners to open their "non-business areas" to any citizen to engage in so-called non-commercial speech with customers and employees on matters relating to "community affairs, religion, politics, business practices, workplace rights or topics of public concern."  I wonder if they would allow the Klan to conduct a rally.

      The real foolishness of this ordinance is easily demonstrated -- stores like Wal-mart, Target and others generally provide shopping at a substantially lower cost to local residents, who otherwise frequent small retail establishments that cannot use economies of scale to purchase their goods.  By making it extremely unpleasant for retailers to come into the city, the ordinance effectively mandates that Chicago residents will pay higher prices for everything from milk and toilet paper to clothing and electronics.  Numerous residents have complained at public hearings about riding the bus for miles to get to the nearest Wal-mart where their dollar goes much further than shopping options within the Chicago city limits.  However, there is one type of establishment that has not been subjected to this kind of scrutiny or social engineering -- casinos.  There are several proposals to put a major casino operation in downtown Chicago.  I have yet to see a single ordinance drafted in response.  If the choice for the aldermen is between supporting groceries or gambling, it appears that gambling holds all the cards.

UPDATE:  Chicago aldermen with stores in or projected to come into their wards are claiming the stores will close or not build there if the measure, now amended, passes.  The link to the story is here.  What, someone is surprised at the result of this legislative excess?

ADDITIONAL UPDATE:  The Chicago Trib is after the City Council now, too.  Here's the story.

LATEST UPDATE:  The ordinance passed this week, and will face an immediate legal challenge.

LATEST ADDITIONAL UPDATE:  Target bails.