Think Twice About That Sabbatical, September 26, 2008
by Meg Gallucci"Discrimination is a form of unfairness, but not all unfairness is discrimination." These are the words of the First Circuit in a recent decision involving a tenured professor who sued Dartmouth College alleging, among other things, age, gender and religious discrimination.
Things got nasty in the theater department at Dartmouth. The department was suffering from student attrition and low morale, apparently due to the contentious nature of one tenured professor. She left on a year-long sabbatical and returned only to find herself demoted. It seems that there was noticeable improvement in the department during her absence.
A review committee suggested that Dartmouth offer the contentious professor an early retirement package. Not one to go gentle into that good night, the spurned professor instead filed a claim with the EEOC and the New Hampshire Commission on Human Rights. She then sued in federal district court.
The unpleasantness within Dartmouth's ivy-covered walls included remarks suggesting that the professor "find [her] rabbi and start . . . a happy new life." Such jabs, and the way she was treated, prompted the charges and lawsuit against the college.
The Court admitted that things were not quite right at Dartmouth, but did not find that "discriminatory purpose" was behind the unpleasantness. The Court instead described the situation as one of "pre-existing animus." The Court found plenty of "pre-existing animus," but the discrimination laws do not offer protection from unpopularity unrelated to discrimination. The decision to demote occurred before the drama intensified (these are theater people, after all), and timing ultimately defeated the discrimination claim.
The case is Sabinson v. Trustees of Dartmouth College, First Circuit, decided on September 12, 2008.
Baby Boomer Retirement Drains Market of Manufacturing Workers, September 24, 2008
by Meg GallucciThe Department of Labor recently released the results of a survey conducted by the National Association of Manufacturers. The results are hardly surprising; more small and medium-sized companies expect to reduce employment in 2008 than in 2007. Of some surprise, however, is that 59 percent of the surveyed companies were optimistic about sales growth. Exports, for example, are expected to grow at a rate of 5 percent or more, sparking expansion by small and medium manufacturers.
Almost half of the same companies that expect to reduce employment have unfilled job openings because they cannot find qualified workers. This statistic seems at odds with a reduction in employment and is generally attributed to the retirement of Baby Boomers, a phenomenon that will only increase in the coming years. Finding replacement workers willing and able to work in modern manufacturing presents some difficulty, even in a market where unemployment is rising. There is an apparent gap in the work force, with fewer applicants illustrating the necessary skills for manufacturing jobs as Boomers retire.
The 314 companies responding to the survey had on average 231 employees. The Department of Labor released the report on September 19, 2008.
Co-workers View Disabled Worker’s Requested Accommodation As “Unfair”, September 22, 2008
by Meg GallucciOne has to wonder how this case ever got to court. A cashier with degenerative osteoarthritis of the spine sued Family Dollar Stores claiming failure to accommodate in violation of the American with Disabilities Act and the Ohio anti-discrimination statute. The cashier complained that she could not stand for long periods of time because of her medical condition, and her employer refused to grant her the reasonable accommodation of the periodic use of a stool at her work station. Her doctor certified that she could stand no longer than 60 minutes at a time, followed by 5 to 15 minutes of sitting. The plaintiff offered to provide the stool herself.
Dollar Stores apparently balked at the stool request because other employees complained of unfairness. To resolve the dispute, management proposed to schedule a meeting with the cashier and the district manager. The meeting never occurred, and the cashier left her job. Dollar Stores terminated the employee for abandoning the position.
The employee sued. The lower court granted summary judgment to the employer because the employee left her job, and the court found that there was no adverse employment action. On appeal, however, the appellate court disagreed and reversed summary judgment.
The central issue, according to the appellate court, was whether the refusal to accommodate the employee’s disability was the reason for her involuntary resignation, thereby converting the involuntary resignation to a constructive discharge.
The employee’s disability claim was verified by her doctor. The requested accommodation would have cost the employer virtually nothing, except time spent listening to the gripes of the disgruntled co-workers claiming unfairness. As an alternative to expensive litigation, the latter might have been the softer and easier choice. On the other hand, stools all around would probably have satisfied everyone, eliminated the unpleasantness of employee complaints, and saved legal fees.
The case is Talley v. Family Dollar Stores of Ohio, 6th Circuit, case no. 07-3971, decided on September 11, 2008.
President to Sign Bill Broadening ADA Coverage, September 18, 2008
The Supreme Court and other federal courts have tried to put a measure of commonsense into the Americans with Disabilities Act. For example, the courts have said that having a disability that is completely relieved by medication is not really a covered disability.
The Democratic-controlled Congress has passed a bill eliminating these refinements of the ADA, and President Bush has announced he will sign it. For the most part, the day-to-day effect on business will be minimal. The changes will merely make it easier for plaintiffs' lawyers to contend that their clients' disabilities, which were never apparent to anyone, were the reason for an employee's discipline or termination.
Once signed, an update will be contained in the firm's newsletter. Stay tuned.
At-Will and Permanent Replacements, September 17, 2008
Under the National Labor Relations Act, if employees go out on strike over contract negotiations, they can be permanently replaced by newly hired workers. If the strikers are permanently replaced, that means they get put on a preferential hiring list at the end of the strike and do not get their jobs back immediately. Temporary replacements, however, have to be let go and the strikers reinstated.
Naturally, most litigation concerns whether the replacements were permanent or temporary. In a recent case, an employer hired replacements, but stated in their hiring documents that their employment was "at will," and that they could be terminated at any time. The union contended that this made the replacements temporary.
A federal appeals court disagreed. The court found that the intent of the employer was to hire these people on a permanent basis, merely reserving the right to fire them later for reasons yet determined. United Steelworkers v. NLRB, No. 07-3885 (7th Cir., September 15, 2008).
Repeated Requests for Accommodation May Trigger Constructive Discharge Claim, September 16, 2008
If the discriminatory conditions causing an employee to quit are bad enough, a court will treat the resignation just like a discharge. The resignation is considered a constructive discharge. A federal appeals court has ruled that an employer's repeated denial of a reasonable accommodation to an employee under the ADA may give rise to a constructive discharge. In the case before the court, an employee with arthritis was denied a request for a stool. Talley v. Family Dollar Stores of Ohio Inc., No. 07-3971 (6th Cir., September 11, 2008). The court emphasized that a denial of a request for an accommodation will not automatically give an employee the right to quit, then sue, for constructive discharge.
Maryland’s Highest Court Blocks Transgender Vote, September 15, 2008
It is now illegal to discriminate against individuals based upon gender identity in Montgomery County, Maryland. Last week the Maryland Court of Appeals rejected efforts to have the matter voted on in November. The court has not yet issued it’s opinion, but announced its decision because of the pressing need to have a decision on whether the referendum would be on the ballot. Not surprisingly, commentators were split on this outcome. The Executive Director of Equity Maryland, a chief proponent of the law said "we’re thrilled that this long overdue and crucial anti-discrimination measure can finally go into effect and make sure that bias doesn’t go unchecked in our county." On the other hand, president of Maryland Citizens for Responsible Government said "we think it’s a big loss for democracy, for Montgomery County and for privacy and safety for women. We feel like Equity Maryland tried to hijack Montgomery County politics, like Equity Maryland tried to push their way to the front of the line and didn’t care about anyone else. And they did it." Isn’t [it] nice when we can all get along?
Dealing With Retaliation Claims, September 10, 2008
Employers cannot retaliate against employees who oppose illegal workplace discrimination. But such opposition is not a talisman against adverse employment action based misconduct or rule violations. If an employer terminates an employee based on an honest belief that the employee violated a workplace rule, but it turns out later that the employer was mistaken, typically there is no liability for discrimination. To even get a case to a jury in these circumstances, the employee needs to show something more than a dispute about whether the rule violation actually occurred. There must be evidence that the employer’s reason for discharge was pretext for retaliation. (e.g., evidence the employer did not terminate other employees who violated the same rule but had not complained about discrimination).
One appeals court recently examined this rule in the context of an employee fired for making a false complaint of sex harassment. Richey v. City of Independence, - F.3d - (8th Cir. September 3, 2008). Derald Richey was a park ranger for the City of Independence, Missouri until his employment was terminated in May 2004. Richey then sued, claiming that he had been fired in retaliation for complaining about sexual harassment. Of course, both Title VII and the Missouri Human Rights Act prohibit retaliation against an employee who has opposed sex discrimination.
The events leading to Richey’s termination began in March 2004, when Connie Knott, a park naturalist, complained to her supervisor that she felt threatened by Richey’s temper and requested a workspace away from the park. At about the same time, Richey wanted to “clear the air” with human resources. Richey complained that Knott made inappropriate sexual comments to him, engaged in overly affectionate contact including hugging and putting her head in his lap, and that she unexpectedly showed up at his house one Sunday morning to take him to church. Investigation revealed that Richey’s allegations about Knott were unsupported. It turned out that Richey had even drawn Knott a map to his house. It also revealed numerous reports of angry outbursts by Richey and his previous suspensions for workplace violence issues. Richey’s employment was terminated for making a false complaint of sex harassment and violating a policy against intimidating other employees.
An employer dealing with a “he said, she said” set of facts faces a difficult situation. Someone is not telling the truth, but it is not a legitimate option to fire every employee who files a discrimination complaint and is disbelieved. According to the court in the Richey case:
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[W]hen an employer is presented with a "he said, she said" set of facts involving two employees, and the employer chooses to disbelieve and discipline the employee who had engaged in protected opposition to unlawful activity, then the employee's claim of retaliation must go to a jury. The jury must decide whether the employer took the adverse action because of a good faith belief that the employee made false accusations (in which case there is no liability, … or because the employee opposed unlawful activity ... But where the employer proffers a good faith belief in misconduct that is supported by some independent corroboration, then the employee, to avoid summary judgment, must present additional evidence that the employer's explanation is pretextual, and that the employer really acted because of the employee's protected activity.
In other words, when faced with a “he said, she said” situation, it is asking for trouble to take action against an employee for making a false claim of sex harassment. If, on the other hand, there is other evidence, such as statements from neutral witnesses or documents or other forms of independently verifiable information, the legal risk is reduced. Disciplining an employee who has complained about discrimination is always tricky, because an allegation of retaliation is always looming. It is not uncommon for employers to prevail on an underlying discrimination charge only to encounter difficulty with the retaliation claim. Employers should discuss specific situations with employment counsel in advance of taking action.
Richey’s appeal was unsuccessful. The court upheld summary judgment for the employer.
Police Lying Under Stress Approved by Arbitrator, September 2, 2008
An Ohio State Trooper lied about his on-duty activities during a police investigation. His employment history included that he had a "preventable patrol car crash; that he was suspended for three days for refusal to comply with a direct order; that he failed to utilize car-mounted video unit policies; that he failed to timely file citations and reports; that he was guilty of negligence in an investigation on one occasion; and that he on a further occasion failed to show up for duty claiming that he misread the schedule." When he lied about his actions, the State of Ohio fired him. His union dutifully moved the case to arbitration.
The Trooper had a son with autism, and worked in a stressful job. Arbitrator Marvin J. Feldman ordered reinstatement with placement of the Trooper on retirement. According to Arbitrator Feldman, "[t]he stress at work buttressed by the stress at home, simply appeared to be too much" for the Trooper. That excused the Trooper's lie "to protect his employment."
Interestingly, throughout his written decision, the Arbitrator took care to describe what was a stone-cold lie as an "untruthfulness" or "untruth."
Sometimes Acting On Presumptions is Both Prudent and Legal, September 1, 2008
Apparently mild mannered Frederick Kozisek worked his way from Weed Control Officer to Building and Grounds Supervisor, with the added obligation to act as Seward County Nebraska's Veterans Service Officer. One evening he drank heavily, following which the "intoxicated Kozisek wielded firearms, killed or wounded some of his family's farm animals (a pet racoon, ducks, a peacock, and a family dog), and threatened his wife. . . . Kozisek was arrested by the Seward County Sheriff the next morning for making terroristic threats, and for using a firearm to commit a felony."
The County ordered Kozisek to enter an in-patient program for alcoholism, and fired him when he refused. Kozisek sued under the Americans with Disabilities Act, arguing that the County considered him disabled based upon illegal presumptions about alcoholism. The federal Court of Appeals disagreed, writing, "The board's insistence upon Kozisek completing inpatient alcohol treatment was not based upon misconceptions, myths or stereotypes about his possible drinking problem. Rather, it was based upon, first, a very serious incident which resulted in criminal charges against Kozisek, and then most importantly, a licensed mental health therapist's recommendation that Kozisek complete inpatient alcohol treatment." The application of common sense was upheld.
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