Monday, August 15, 2005

Outside the Statutory Time Period but Inside the Courtroom

Can an employee present evidence of an alleged discriminatory or harassing incident that occurred more than 300 days before that employee filed a charge with the EEOC?  Many would think that the answer is “no.”

Most HR professionals and employment attorneys are well aware that a charging party must file a charge with the EEOC or other agency within 180 days (or within 300 days if the alleged unlawful conduct occurred in a jurisdiction that has a local or state agency that handles fair employment practices charges) of the alleged unlawful occurrence.  However, the passage of 300 days without a charge filed certainly does NOT mean that evidence of the alleged occurrence will not ultimately be presented to a jury.  Let me explain . . . .

On July 21, 2005 the Equal Employment Opportunity Commission (“EEOC”) revised the portion of its Compliance Manual that addresses time limitations on filing employment discrimination charges.

Per the EEOC, it issued the revision to its Compliance Manual to reflect the holding of the U. S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In that case the Supreme Court noted that a hostile work environment claim may be based on a series of separate acts which collectively constitute the hostile work environment for which recovery is sought.  The Court found that as long as even one act contributing to the claim occurred within the filing period, all of the contributing acts during the entire period of the hostile environment can be considered for determining liability.  Thus the EEOC Compliance Manual now provides that in a hostile work environment claim, the entire claim, including incidents that occurred outside the filing period, is actionable as long as at least one incident that is part of the claim occurred within the filing period.

“Oh,” you say, “but at least the Supreme Court in National Railroad Passenger Corp. made it clear that discrete acts, such as termination, failure to promote, denial of transfer or refusal to hire are not actionable if time barred.” Do not be too quick to make that assumption. The EEOC creatively asserts in its Compliance Manual that even a discrete act may be argued to be part of a hostile work environment (and thus still actionable even if otherwise time-barred).  In doing so, the EEOC cites to a 2003 decision by the D. C. Court of Appeals, and disagrees with a 2004 decision by the Ninth Circuit Court of Appeals.  The EEOC does note that recovery for an untimely-asserted discrete act is limited to assessment of damages for the hostile work environment, and the charging party would not be entitled to specific relief, such as back pay or instatement, for the discrete act itself.

Both the Supreme Court in National Railroad Passenger Corp. v. Morgan, and the EEOC also point out that evidence of alleged discriminatory acts, for which no timely charge was filed, can also be admitted at trial and considered as background evidence in support of a timely claim.  Of course, once a jury has seen evidence of acts for which no timely charge was filed, there is no guarantee that the jury will not, consciously or subconsciously, factor those acts into their damage award in some way.

Finally, the EEOC takes the position in its Compliance Manual that if a claim alleges a pattern or practice of discrimination, and at least one act that is a component of the pattern or practice of discrimination occurred within the statutory filing period, there is no time limitation at all, and damages can be awarded for all acts that occurred as part of the pattern or practice, without regard to how long ago they occurred.

Monday, August 08, 2005

Are you a lovable fool? a competent jerk?

The June issue of Harvard’s Business Review includes a new study on work partners.  According to the abstract:

“New research shows that work partners tend to be chosen not for ability but for likeability. Drawing from their study encompassing 10,000 work relationships in five organizations, the authors have classified work partners into four archetypes: the competent jerk, who knows a lot but is unpleasant; the lovable fool, who doesn’t know much but is a delight; the lovable star, who’s both smart and likeable; and the incompetent jerk”.

Clearly, everyone wants to work for the lovable star, but most people would rather work for the lovable fool than the competent jerk.  That doesn’t surprise me (having had to work for a number of competent jerks over the years), but what’s the lesson to learn?  Attempt to reform the jerks in your organization and recognize that it’s not always foolish to keep a few fools around.

Friday, August 05, 2005

Sending the Wrong Message

According to a new Tulane University study, flirtatious women get fewer raises and promotions.  You can check out the article here.  I’m no economist, but something about this study strikes me as odd.  The study is based on self-reporting by 164 MBA graduates, in which they were asked to respond to ten questions about their conduct at work, including “I flirt with people at work” (all 10 are reproduced below).  While 49% of the women reported engaging in at least one of the 10 behaviors, almost all of the women said it was “infrequent”.  I haven’t seen the actual study (to be released on Monday), but if I’m reading the article correctly, women who infrequently flirt with co-workers will be promoted, on average, one less time than women who never engage in this type of behavior.

Obviously, the issue is not whether the two are correlated, but whether the flirty behavior causes the managerial decision not to promote or grant a pay raise.  I’m not sure whether the study does (or can) prove causation, but how can you control for the myriad of policies and procedures that govern promotions and raises?  If you’ve ever had the misfortune of litigating a failure to promote or an Equal Pay Act case, particularly in a large company, you know how tedious it can be to ferret out the causes for these decisions.

Ten Questions:

Thursday, August 04, 2005

Firing Employees in the Information Age

If you didn’t think it was already tough enough to fire an employee, check out this web site.  It’s dedicated to stories submitted by former employees about their terminations.  If I had to guess, it’s a marketing strategy for an affiliated site (a search engine for job postings).  I read through a couple of “stories” and none of them seemed silly, outrageous or embarrassing to me (at least not the ones that sounded true).  Most of them just made me cringe.  One of the posts is titled “Fired Over Known Handicap”.  Who’ll be surprised if some company files suit, claiming it was defamed by one of the stories?  (On a related information-age lawyering note, always remember to seek discovery on an employee’s post-employment communications—you might be surprised by what you find).

Friday, July 22, 2005

Workplace Blogging Policy

There’s a great article here on the dangers of workplace blogging.  If you don’t already have a workplace blogging policy in place, you should start thinking about one.  Here are some sound suggestions on developing the policy.  As always, contact your employment lawyers before implementing a new policy.  If you do adopt a blogging policy, make sure it includes guidelines on podcasting, which should be the source of the next wave of HR headaches.

Friday, July 08, 2005

Workplace Blogging

The Electronic Frontier Foundation (which describes itself as “a donor-supported membership organization working to protect our fundamental rights regardless of technology") has added a Bloggers’ FAQ on Labor Law (located here).  It’s written for employees and addresses legal issues arising from workplace blogging.  I found the discussion on NLRA rights the most interesting.  Of the few terminations that have occurred as a result of employee blogging, I don’t think anyone has challenged the dismissal based on Section 7 rights.  That said, I would expect to see that lawsuit within the next year or so.

Friday, May 20, 2005

Qui Tam . . . . Again!

Heads up, all you employers!  If you receive payments from the federal government, make sure your accounting and billing is all accurate and proper, or you too could face a multi-million dollar hit.

Oracle Corp. announced this week that it will pay $8 million to settle a whistleblower lawsuit claiming that it fraudulently billed the federal government for training.  According to a Newsday article, $1.58 million of the settlement money will go to the former employee who blew the whistle on the company.  Oracle Corp. denies any wrongdoing.

This type of claim, referred to as a “Qui Tam” lawsuit, can lead to very large judgements and settlements.  For more understanding of this cause of action, see “Qui Tam is Alive and Well”, posted on this blog site March 17, 2005.

Friday, May 13, 2005

Where There’s Smoke . . . You’re Fired!!

I am sure we are all aware that employers are having to find ways to deal with sharply escalating costs of providing medical coverage.  As reported in a recent news story, some employers are thinking “outside the box” (or should that be “outside the pack”?) and are refusing to hire and even terminating individuals who smoke—even those who smoke only away from the workplace.

This raises issues of discrimination, invasion of privacy, and, some would say, “big-brother” control.

The news story reports that more than 20 states have passed statutes prohibiting discrimination on the basis of “lifestyle decisions.” (Having not researched this fact, I cannot tell you which 20 states these are.  I can tell you that Texas, from whence I write, is not one of them.)

I had to think about this trend of refusing to employ smokers for a while to arrive at my own opinion.  However, being a firm believer in free choice, and thus a proponent of at-will employment, I had to remain true to my principles.  If I choose to smoke, my employer should be free to end our relationship on that basis.  Neither my employer nor my coworkers have any obligation to bear an increased cost because of my choice.  (My husband and I are a split household on this issue.  While he believes the company should be allowed to charge employees who smoke higher insurance rates (as some companies do), he does not believe a company should be able to “dictate” that its employees cannot engage in lawful conduct while off company time and premises.)

The cost of smoking is felt not only in medical insurance premiums, however.  It also shows up in other areas, such as time away from work due to increased illness.  Additionally, other “off-the-clock” conduct can certainly lead to termination.  So yes, employers SHOULD be allowed to base employment decisions on whether an individual smokes on their own time and away from work.  Smoking is a choice.  We need to come back to the realization that our choices carry consequences.  We should bear the consequences of the choices we make.  But now I am starting to preach. . . .

I am very curious how others evaluate this trend, and welcome and encourage your comments.

Monday, May 02, 2005

Drinking and Sex

Question:  Since when is terminating an employee for drinking on the job grounds for a sex discrimination case?

Answer:  When the employer applies its rules inconsistently, and disciplines a woman for drinking on the job more severely than it disciplines men for the same infraction.

A recent storyfrom San Francisco provides a very good reminder to employers:  apply your policies consistently!  Seems that the San Francisco Fire Chief, herself a woman, recently replaced San Francisco Fire Department’s zero tolerance for substance abuse with a new policy that considers each case on its own merits.  Plaintiff (and former firefighter) Cynthia Childers has sued the Deparment for sex discrimination.  Ms. Childers claims that after she was found to have been drinking on the job she was terminated, while “dozens” of male firefighters were sent to rehabilitation when they were caught drinking on the job.  (Of course, whether her allegations are true remains to be determined.)

Does this mean that employers must enforce discipline rigidly, without considering the facts of each case?  Not at all.  What it does remind us, however, is that a failure to apply (even very good, justified) rules and discipline consistently, with “the punishment or corrective action” consistently fitting the infraction, can lead to claims of unlawful discrimination and attendant litigation costs.

Wednesday, April 27, 2005

Not Man Enough?

Although some states and cities have seen fit to include homosexuals, bi-sexuals and trans-gendered individuals as a protected class and provide a prohibition against discrimination on based on those characteristics, most believe that federal law (Title VII of the Civil Rights Act of 1964) does not prohibit discrimination on those bases.  However, the times, they are a-changin’-- especially for employers in Oregon and states within the jurisdiction of the Sixth Circuit Court of Appeals.

As our society has become more accepting of sexual orientations other than heterosexual, and of transvestitism and transexualism, it is no surprise that some jurisdictions have passed state and local laws prohibiting discrimination on those bases.  For example, Maine will add sexual orientation, defined as a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression, to its list of protected categories as of June 2005.

In addition to law changes brought on by legislative bodies, the Federal Court of Appeals for the Sixth Circuit and the Oregon Federal District Court have interpreted Title VII to prohibit discrimination against a homosexual male (Oregon) and a pre-operation trans-sexual male (Ohio) under the theory that the prohibition against sex discrimination also prohibits employers from discrimination on the basis of sexual stereotyping.  In other words, the courts found that discrimination or harassment against an individual because his behavior or appearance is seen as effeminate or not manly enough can support a claim for sex discrimination in these two jurisdictions.

In the Oregon case, Kevin Turner, who is homosexual, alleged he faced constant harassment, including co-workers who put bananas in their pants and rubbed up against him. He also alleged his supervisor picked up a purse and called him “Kevina” during an employee morale-boosting event.  In the case decided by the Sixth Circuit (pdf), Phillip (now Philecia) Barnes alleged that his promotion to Sergeant of the Cincinnati Police Department was revoked in part because he was a male-to-female transsexual living as a male while on duty but as a female when off-duty.  (Barnes had a French manicure, arched eyebrows, and sometimes wore lipstick and makeup to work.  Witnesses for the Cincinnati Police Department testified that Barnes did not have the respect of subordinate police officers.)

Both plaintiffs sued using the theory that sexual stereotyping—discrimination because a person’s conduct or appearance does not fit that traditionally expecte for their gender—is a type of sex discrimination under Title VII.  The Oregon district court and the Sixth Circuit Court of Appeals agreed that Title VII provides this cause of action.  (This is not the first case from the Sixth Circuit interpreting Title VII in this way.  The same Court decided Smith v. City of Salem (pdf) in June 2004.)

What does this mean for employers?  Just because you are not in a jurisdiction that has legislatively designated sexual orientation as a protected class, it is not safe to assume that you can base employment decisions on things like, say, a male employee wearing lipstick and a dress to work.  When issues of sexual stereotyping come up, you’d better call your lawyer—preferably BEFORE taking any action—to learn the current status of this issue in your jurisdiction.

Thursday, April 21, 2005

The Baser Basics

Laurie R. Jones’ posting of April 12 (see below) references “commonsense” warnings that are, for some reason, “necessary to repeat . . . and repeat . . . and repeat.” For human resource professionals and employment attorneys, the need to repeat these warnings over and over again may well lead to the conclusion that common sense is, unfortunately, not very common.

Okay.  At the risk of (and for the benefit of) repetition, let’s say this again.

Speaking of sex . . .

. . .  in the workplace, or with coworkers outside the workplace is NOT a good idea.

It doesn’t matter if a person doesn’t mean harm, means the comments to be a joke, or is even just referring to a Seinfeld episode, talking about sex with a co-worker or other business associate is a very bad idea.  It can lead to discipline, termination, litigation, and other less-than-desirable results.  Picture any discussion about sex as placing your future in the hands of the hearer.  Remember, and remind others—before telling that sexual joke, or otherwise talking about sex, think about whether it is really worth risking your job over.  Think about how it would feel to have to explain that one to friends and loved ones.  If you choose to talk about sex, keep it far away from work and any connection to your employment. 

‘Nuff said?  (sigh) Probably not . . . .

Tuesday, April 12, 2005

Killing Litigation with Kindness

A new book is getting a lot of buzz among the Human Resources ranks and is even discussed in the April 11, 2005 edition of Time magazine:  The Likeability Factor, by Tim Sanders, a Yahoo! executive.  What is The Likeability Factor and why should management care? “A person who gives others ‘a sense of joy, happiness, relaxation or rejuvenation,’ says Sanders, is more likely to be hired, promoted and retained. According to research, he says, likeable bosses, rather than inconsiderate or feared ones, get the best work out of employees. Nastiness, which he says is rampant, translates into less productivity, higher turnover and a culture of unhappiness.” (Time magazine, “Animals, Behave; A New Book Tells Why Likeability Not Intimidation is the Real Key to Conquering the Workplace”).  “The basic rules are pretty, well, basic: No screaming, hanging up phones, slamming doors and expressing biting sarcasm. The bottom line for really slow learners: ‘Just be quiet and stop being so unfriendly.’” (Id.). 
Something we in HR have espoused for years and certainly something employment attorneys wish for:  the jury loves a likeable boss!  So why all the hoopla? 

“Play nicely!” It’s interesting that such a commonsense warning is necessary to repeat…and repeat…and repeat.  But any seasoned employment attorney or HR executive will confirm:  many employment disputes reach costly litigation simply because the boss was a jerk.  Employees will put up with a lot from a boss (and an organization) that is friendly, caring, and respectful.  Put an employee with a screamer, and you are sure to hear the EEOC knocking at your door.  Bottom line?  Sanders’ advice holds true not only for increasing productivity, promotability and reducing turnover.  It will also lower the organization’s legal bills. 

Friday, April 08, 2005

Beauty in the eye of the beholder

I thought I should provide a link to the analysis that forms the basis of the AP’s article on the relationship between good-looks and pay.  I guess the “beauty premium” is just an ugly fact of the American workplace.

Monday, April 04, 2005

Non-Pregnant Employee Covered by the PDA?

Riddle me this:  When is a non-pregnant woman permitted to bring a claim under the Pregnancy Discrimination Act of 1978 for pregnancy discrimination???  Just ask the 6th Circuit Court of Appeals who recently heard the case of Nurse Suzanne Kocak. (Kocak v. Community Health Partners of Ohio Inc., 6th Cir., No. 03-4650, March 11, 2005.)

In 1999, Ms. Kocak worked for Community Health Partners of Ohio, Inc. and resigned because of medical complications associated with her pregnancy.  In 2000 and again in 2001, she applied to work on a part time basis with her old employer and was turned down both times.  Apparently, Nurse Kocak was not unlike the infamous Nurse Ratched: Community Health asserted that Nurse Kocak was turned down for employment because she was “avidly disliked” by her peers, difficult to work with, and had been involved in frequent conflicts at work. Ms. Kocak, while admitting to these performance issues, maintained her denial of employment was motivated by considerations in violation of the PDA.  The District Court held that Ms. Kocak was not covered by the PDA as she was not pregnant at the time of her reapplication, and no medical condition related to pregnancy manifested itself during this time.

This is when you should scratch your head and wonder, “Where’s the lawsuit here?” Enlightening you with two facts I omitted should solve this confusion:  1.) Ms. Kocak testified that a personnel manager at Community Health asked Ms. Kocak during her 2001 reapplication process if she was pregnant or planning on having any more children; and 2.) Ms. Kocak also testified that her former supervisor said she would not agree to rehire Ms. Kocak because of the complications of her 1999 pregnancy. 

Not surprisingly, the 6th Circuit found the District Court erred in determining that Ms. Kocak was not covered by the PDA; instead, the Circuit Court opined that Ms. Kocak is protected by the PDA and cannot be refused employment on the basis of her potential pregnancy.  Interestingly, the Court declined to comment on whether a plaintiff who had never before been pregnant could assert a claim under the PDA.  So, while a previously pregnant, but not currently pregnant, employee can find protection under the PDA, the riddle remains as to whether a never before nor currently pregnant employee could do the same.

In the end, Community Health was successful in their defense, offering “substantial evidence” that it would have decided not to rehire Ms. Kocak absent any illegal motive.  (Remember the Nurse Ratched similarities?  Enough said.) It appears, however, that this case went all the way to the 6th Circuit because of the two awkward statements made by Community Health management regarding Ms. Kocak’s plans for more children.  Who isn’t groaning loudly after hearing of this completely avoidable debacle?

My two cents for employers: 
1. Every supervisor (including HR) should understand the implications of federal, state and local employment laws.  Do they know what the PDA is and what it means? 
2. Inform those responsible for interviewing and hiring how to properly conduct an interview.  The loose lips of the personnel manager and the hiring supervisor could have easily sunk Community Health’s ship. 
3. Document performance concerns of every employee.  It was only the uncontroverted evidence of Ms. Kocak’s poor performance that saved Community Health. 

Wednesday, March 30, 2005

Dishonesty in the Workplace and Rules for Living

As I read a recent news story about widespread dishonesty in the workplace , I couldn’t help but reflect on an irony of life in America in 2005.  By nearly every standard, we are the richest nation not only in the world, but also in history.  To put it another way, we’ve got it very good.  Nevertheless, judging from the news story and my personal observation, it appears that Americans are forfeiting good character and becoming more and more dishonest (and making excuses for doing so.)

As a result of this reflection, I want to share a list of five simple Rules for Living (author unknown). 

They were given to me by a former co-worker (thanks, Mike).  I keep them taped to my computer and re-read them regularly:

“Take responsibility for your life.  Stop making excuses.  Make yourself responsible for your thoughts, words and actions.

Rule One Be a majority of one.  Do what is right and good.  Don’t worry about being popular.

Rule Two Don’t let the fact that you can’t do all you want to do stop you from doing what you can do.  Do something.

Rule Three Don’t hate people who use violence.  Evil only begets evil.  Love those who don’t agree with you.

Rule Four Always be involved in helping someone.  Use your life to enrich those around you.  Be a nourisher.

Rule Five You can make a difference if you fill your life with love and service.  Our true wealth and greatness is the good we do.”