Compliments Vs. Crude Comments – Is Either Sexual Harassment?, October 31, 2003
Plaintiffs complaining of harassing conduct of different types have not succeeded in establishing that they were the victims of sexual harassment. For example, one female employee at a bank claimed that she worked in a hostile work environment created by her female supervisor. Mann v. Lima, et al., No. 02-088S (D.R.I. Oct. 10, 2003). The plaintiff claimed that her supervisor gave her repeated compliments on her clothes and looks and that she asked the plaintiff to give her a hug. The supervisor also allegedly touched the plaintiff on her head and ankle. The court rejected the plaintiff's claims that this conduct was "severe and pervasive" harassment. In considering other cases involving female-on-female sexual harassment, the court found that the plaintiff's claims of harassing conduct were "minor league."
On the other end of the spectrum, a female employee of a manufacturing company alleged that she was subjected to vulgar and demeaning comments. Terry v. Sur-Flo Plastics & Engineering Inc., No. 239887 (Mich. Ct. App. Oct. 21, 2003). The plaintiff claimed that other employees harassed her because of her masculine appearance and demeanor. Particularly, the plaintiff alleged that when she requested a bathroom break, her supervisor stated that she could just use a bucket. After the plaintiff complained about the comment to a more senior supervisor, she was ultimately fired. The court found that while the comments were "crude and demeaning," they were not sexual in nature, and dismissed the plaintiff's claims.
Employee's Unexcused Absence on First Anniversary No Bar to FMLA Leave, October 30, 2003
Kim Babcock had worked for BellSouth for about 10 months when she was diagnosed with the early stages of cancer. Acting on her doctor's advice, she took some time off, and BellSouth first designated it as short term disability leave until physician approval was received. Babcock's doctor did finally certify the time off as necessary, but only after the leave approved by BellSouth had expired. Her absence was "unapproved" after this time. While on this unapproved absence, Babcock's one year anniversary with BellSouth occurred.
Babcock then asked for additional time off, which BellSouth refused. When she did not return to work, Babcock was fired. She sued, alleging that BellSouth denied her FMLA leave. BellSouth claimed that Babcock was not eligible for FMLA, since her leave started before her one year anniversary. A jury found for Babcock
The Fourth Circuit affirmed, holding that Babcock was an employee on an unexcused absence on her one year anniversary. Thus, Babcock made the request for FMLA leave when she was an eligible employee. BellSouth rejected this request and fired Babcock.
The moral? Look carefully before pulling the trigger with an employee who falls close to qualifying for FMLA leave. See Babcock v. BellSouth Adv. & Pub. Corp., No. 02-1791 (4th Cir. October 28, 2003).
Report Recommends Simplifying Warn Act, October 22, 2003
The federal General Accounting Office ("GAO") released a report on October 20, 2003, recommending that Congress simplify the Worker Adjustment and Retraining Notification ("WARN") Act. The GAO's recommendation stems from the confusing multiple notice requirements of the Act. The WARN Act, which was originally enacted in 1988, requires employers with more than 100 full-time employees to give 60 days notice of a plant closure or layoff of 50 or more workers to employees and state and local government. For a layoff of 50- 499 employees, the notice requirement is triggered only if the number of employees equals one- third of the employer's workforce at that worksite. The WARN act also contains notice requirements for rolling layoffs conducted in a 90-day period.
The GAO report indicates employers' understandable confusion over the various notice requirements of the WARN Act. Because of the complicated language of the statute, many employers failed to give notice of layoffs when required, while many others provided notice of layoffs or plant closures when it was not necessary to do so. The report notes that the Department of Labor has started to revise a 1989 brochure on the WARN Act to assist employers.
Court Nixes Requirement of Approval for Unforseen FMLA Leave, October 17, 2003
Honda had a policy that required an official request be made by an employee within three days of the leave. When Sam Cavin took unforseen leave, but did not make an official request, Honda found that he was not qualified to call it FMLA leave. Cavin sued. Although he lost at the trial court, the Sixth Circuit recently reversed, holding that Honda's policy created an unreasonable barrier to exercising an employee's rights under the FMLA. Cavin v. Honda of Am. Mfg. Inc., No. 02-3357 (6th Cir. October 10, 2003). This decision creates a circuit split with the Seventh and Tenth Circuits, which have upheld such policies.
Sexual Favors In Exchange For Longer Bathroom Breaks? October 16, 2003
One federal court has allowed an employee's claim that she was restricted to shorter bathroom breaks after refusing her supervisor's sexual advances to go to trial. Soto v. John Morrell & Co., No. C02-4029-MWB (N.D. Iowa Oct. 6, 2003). The female employee of a meat packing plant sued her employer for sexual harassment, claiming that after she refused her supervisor's advances, he started to monitor her bathroom breaks. She claimed that other female employees who went along with the harassment took longer and more frequent breaks than she was permitted.
The court denied the employer's motion for summary judgment on the employee's sexual harassment claims, stating that it could not determine, based on the evidence, whether the plaintiff suffered a tangible employment action as a result of her refusal of her supervisor's advances. The court left it up to a jury to decide whether that adverse action existed and whether the employer would be liable.
FMLA Requires Three Full Days of Incapacity, October 6, 2003
Affirming a lower court decision, the 11th Circuit has held that the DOL's FMLA regulation requiring an employee to be incapacitated for three consecutive days in order to meet the definition of a "serious health condition" means three full days of incapacity. Russell v. North Broward Hosp., No. 02-13343, (11th Cir. October 2, 2003). This decision was the first among the federal appellate courts to address the issue.
DOL Regulation 825.114(a)(2)(I) defines "Continuing treatment by a health care provider"as including a period of incapacity of more than three consecutive calendar days and certain subsequent treatment or periods of incapacity relating to the same condition. Russell, who had been absent sporadically over a period of 10 days, claimed that her seven consecutive partial days of incapacity met the definition. She did not contend that she suffered from an incapacity lasting three or more full days, however. The court held that this time off did not meet the regulation's intent. "The plain language of § 825.114--'a period of incapacity ... of more than three consecutive calendar days'--points the way to resolution of the issue," said the court.
Te court held that "calendar day" refers to a "whole day, not to part of a day, and it takes some fraction more than three whole calendar days in a row to constitute the 'period of incapacity' required under § 825.114." This analysis adheres to the "universally understood" meaning of a "calendar day" being the period from one midnight to the following midnight. "If we interpret § 825.114 as a requiring full days of incapacity, as we do," said the court, " the requirement will ensure that 'serious health conditions' are in fact serious, and are ones that result in an extended period of incapacity, as Congress intended."
Senate To Pass Genetic Discrimination Bill, October 6, 2003
One of the first items on the agenda for the U.S. Senate when they return from recess this fall is a genetic discrimination bill. The bill (S. 1053), which is expected to pass easily, would prohibit employers from using an employee’s genetic information when making personnel decisions. The bill defines genetic information as information about an individual’s genetic tests, a family member’s genetic tests, or the occurrence of a disease or disorder in family members of the particular individual. Plaintiffs claiming genetic discrimination would be able to sue for the same remedies as are available under the ADA. In an effort to appease business groups, the bill contains a “water cooler” exception for employers who inadvertently learn of an employee’s genetic information. The House of Representatives will take up the debate over a genetic bias bill next, and is expected to move more slowly in considering any legislation. So, it could be some time before any federal genetic discrimination law is finalized.
The Supreme Court's Labor and Employment Docket, October 3, 2003
When the Supreme Court begins its 2003-04 term on the first Monday in October, there will be seven cases of interest to labor and employment lawyers to be decided between now and June 2004. The Court will consider the following cases, and may grant certiorari to review more as the term progresses:
Raytheon Co. v. Hernandez, No. 02-749, addresses an employer violates the ADA when it refuses to rehire a worker who has previously abused alcohol and drugs after he has participated in a treatment program and claims to be rehabilitated.
General Dynamics Land Sys. Inc. v. Cline, No. 02-1080, addresses whether an employer commits "reverse age discrimination" under the ADEA by negotiating a union contract that provides retiree health benefits only to workers who reach 50 by a date certain, or who have 30 years of service by that date, thereby excluding younger employees from the benefit package.
Jones v. R.R. Donnelley & Sons Inc., No. 02-1205, addresses the statute of limitations in racial harassment and termination claims under Section 1981. The question is whether such claims are e subject to a four-year statute of limitations under federal law or, as most Section 1981 claims are, subject to the statute of limitations of the state in which the alleged discrimination occurred. This case is a result of changes to Section 1981 made in the 1991 Civil Rights Act.
Scarborough v. Principi, No. 02-1657, addresses the Equal Access to Justice Act, which permits a prevailing party in litigation against the federal government to obtain it's attorneys' fees. Employers have successfully used the EAJA to recover fees against the EEOC, NLRB and DOL. This case involves the Department of Veterans Affairs, but the result will impact employers.
McCain v. McConnell, No. 02-1702, addresses a First Amendment challenge to the Bipartisan Campaign Reform Act of 2002 that may affect union political spending. The Court heard oral argument in a special session on September 8.
Yates v. Hendon, No. 02-458, addresses whether, under ERISA, a sole shareholder of a professional corporation who repaid a loan from a profit-sharing plan shortly before going bankrupt can block the bankruptcy trustee from taking the repaid money from the plan.
Doe v. Chao, No. 02-1377, addresses whether there was a violation of the Privacy Act when miners' Social Security numbers were used on various DOL documents to identify their claims for black lung benefits. The numbers were listed on multicaptioned hearing notices sent to numerous miners and their attorneys and published in ALJ decisions.
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