Wednesday, May 28, 2014

Rebuffed Coworkers With Influence Create Liability

If you read this blog enough, you will know that intra-office romances seem to come up frequently as a catalyst for some type of lawsuit. In fact, sexual attraction between coworkers is a dominant theme in any number of workplace problems, from harassment of all types to compensation problems to unfair labor practices.  Companies are routinely sued for harassment, discrimination or some other real or imagined slight in situations where a supervisor is attracted to an uninterested (at least at the time of the illegal conduct) subordinate.

But what about a situation where a manager, who is not a supervisor, wants to be get romantically involved with another employee, but is rebuffed?  A federal case out of the First Circuit provides some useful guidance on how the Title VII model of proof plays out in these unusual circumstances.

The male plaintiff was hired as a manager for a company in Puerto Rico. In the course of his position as a regional general manager, a position into which he was promoted less than six months after he was hired, he interacted extensively with a female human resources manager. The two had apparently a friendly, casual flirting relationship that lasted until the woman expressly began indicating she wanted a romantic relationship with him, something in which the plaintiff was not interested. He raised her romantic interest, which she expressed in a number of e-mails, with his supervisors, and in response was told that he should send her a conciliatory e-mail because if he did not, the woman was going to get him fired.

True to this prediction, the HR manager began a systematic campaign against the plaintiff with his supervisors, who then determined to put him on a performance improvement plan. The HR manager was not satisfied with this, and sent a message to company headquarters indicating that she thought any additional opportunity for work improvement was unwarranted and that the plaintiff should be terminated immediately. This is exactly what occurred.

The plaintiff sued for harassment, gender discrimination, and retaliation.  The trial court granted summary judgment to the company on all counts, but the First Circuit reversed with respect to the gender discrimination claim, determining that the plaintiff's termination was a violation of Title VII. The court determined that even though there was no supervisory relationship between the spurned HR manager and the plaintiff, a jury could find that she was effectively engaging in quid pro quo gender discrimination and that she was the proximate cause of the plaintiff's firing for his failure to comply with her wishes. The court set the following test for what is effectively a cat's paw discrimination claim: the plaintiff's coworker must make statements or take actions maligning the plaintiff for a discriminatory reason and with the intent to cause the plaintiff's termination or other adverse employment action; the coworker's discriminatory acts must proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the coworker's actions to achieve their desired effect, though the employer knows or should have known of the discriminatory motivation.

The court noted that the female manager's motivation here was discriminatory-she was responding to being rebuffed on a sexual basis, something that had she been a supervisor would have resulted in strict liability for the company.  Her actions were a direct factor in the termination of the plaintiff. And, most importantly, the people actually making the decision were aware of her conduct and the basis for it. Under the circumstances, the company could be held liable for gender discrimination.

An interesting case, and a useful one for the analytical steps demonstrated by the court in funding liability.

Footnote: because the relationship did not appear to affect the plaintiff's work performance, the court determined that the romantic come-ons were not harassment, and that the retaliation claim failed because the plaintiff could not show that he was terminated as a result of his complaints about the female manager. This is consistent with a limited view of the evidence; I think I would've found harassment under the circumstances.

Thursday, May 22, 2014

Is Telecommuting Now A Mandatory Accommodation for Disabled Workers?

It’s been an axiom of disability discrimination law that the courts will not overrule an employer's legitimate workplace judgment and that employers can structure jobs and establish job qualifications as they see fit.  But some recent decisions have started to erode that doctrine, as judges begin to take issue with what they perceive to be unreasonable employer requirements. This is a troubling trend-most judges do not have experience with mainstream employment workplaces, coming up as they do in either either civil service or law firm practice.  Moreover, these same judges seem to vary in their opinions as to what constitutes a proper job description. Frequently they base their opinions not on  a company's assessment of the requirements of the position, but rather their personal belief as to whether it would be too much trouble for an employer to modify its job requirements in particular circumstances.  These kinds of ad hoc assessments make it very  difficulty for employers to establish reasonable policies, or even assess whether their activities are lawful.  And judicial second guessing ultimately imposes financial cost on employers as they try to keep pace with whatever the latest judicial perceptions seem to be.

Case in point:  a recent federal Sixth Circuit decision in which the EEOC challenged Ford Motor Company’s job description for resale steel buyers.

The fundamental dispute arose over  whether the plaintiff, who served as an intermediary between steel suppliers and auto parts manufacturers producing products for Ford, needed to be physically present at work to properly complete her job.  The court described the essence of the job as "problem solving"-the position required a resale buyer to be able to deal with regular and emergency supply issues between steel suppliers and the manufacturers.  This type of problem solving required the resale buyer to interact with members of the resale team, suppliers and others in the Ford system whenever a supply issue arose.  Ford managers made the fairly uncontroversial business judgment that they wanted these interactions to occur face-to-face whenever possible and that email and teleconferencing were insufficient substitutes for in-person team interaction.

The plaintiff suffered from irritable bowel syndrome, which in its severe manifestation can be absolutely debilitating.  Unfortunately, her symptoms became worse over the course of her employment with Ford and she began to take intermittent and irregular FMLA leave when she experienced significant symptoms.  The company tried to accommodate some of the attendance problems by allowing the plaintiff to work a flex time telecommuting schedule, but the trial routine was unsuccessful because the plaintiff could not make regular appearances at the office.  The company did allow her to do some remote work from home on an informal basis to keep up with her paperwork, but continued to require her to meet in-office hours requirements.

Ford had a telecommuting policy authorizing employees to work up to four days a week from a telecommuting site, although it noted that not all salaried employees eligible to apply for telecommuting would have jobs that were appropriate for those kinds of arrangements.  Some other buyers, not in plaintiff’s position, telecommuted one scheduled day per week.  But when the plaintiff requested telecommuting, Ford determined that her position was not appropriate for it, including that because her absences were unscheduled and unanticipated, the telecommuting policy would not be effective.  The company offered the plaintiff several other potential accommodations at work including seeking another position, that would be suitable for telecommuting, but the plaintiff rejected each of those options.

The district court granted summary judgment to Ford noting that the plaintiff was unable to meet the basic requirements of her position, and stating that the court would not second guess the employers’ business judgment regarding the essential functions of the job with respect to irregular telecommuting up to four days a week.

But the Sixth Circuit reversed.  Instead of deferring to the employer's assessment of its own job requirements, the court required Ford to demonstrate that physical presence in the workplace was an essential function of the plaintiff's job, or alternatively, that the proposed telecommuting arrangement would create an undue hardship for the company.  The court found that Ford could not show that regular attendance was an essential part of the resale buyer position, and in an exercise in sophistry( I find the court's deliberate contortion of its analysis to be quite disingenuous), the court noted that a physical worksite can now mean simply a place where the employee is capable of performing the job. The court said that Ford had established by uncontroverted testimony from its managers that physical presence was required for the resale buyer position.  But the court simply rejected this evidence.  In fact, the court looked at Ford’s efforts to accommodate the plaintiff, including the fact that it allowed her to actually work from home for a while, as well as the telephonic and email centric nature of the communication with the clients, and said that Ford hadn't put on enough evidence to show that the job could not be done by telephone or email.

As noted above, I find this decision very troubling.  Basically, the Sixth Circuit simply rejected the employer’s business judgment on how it wants its work accomplished.  Any employer that has a telecommuting policy needs to be very careful about taking any action with respect to an employee whose disability requires her to be absence from the workplace, but where remote work might be possible.  I can see companies eliminating telecommuting policies entirely (which would strengthen the argument that people need to be in the workplace, but reduce the flexibility companies routinely like to maintain), or at the very least resetting job descriptions so that telecommuting policies will simply not apply.  At the end of the day, an appellate court’s rejection of what had heretofore been considered an employers’ fundamental right to structure jobs the way it sees economically fit, may ultimately result in less options for employees rather than more.

The Tricky Case of the Third Party Harassment Claims

Actually, this is not that tricky.  The 4th Circuit recently affirmed something that employment lawyers have been telling their clients for years – an employer's work environment extends throughout the span of the company’s control, and includes customers, vendors and other third parties that come onto the premises.  In this case, a female receptionist and customer service representative was subjected to a multi-year exposure to sexual and racial slurs by an independent sales representative for another company.  Plaintiff interacted with this gentleman (I use the term loosely) more than once a day over the course of the several years that he was representing his company.  The male sales representative continuously made racist and sexist comments, displayed lewd pictures, and engaged in just about ever other vile type of behavior you can imagine in the presence of the plaintiff and other women in the office.  Some of this conduct took place in front of the plaintiff’s supervisor, who also observed the immediate and stressful emotional effect that this individual’s conduct had on the plaintiff.   In addition, the plaintiff reported the offensive conduct several times to other members of her employer’s management team.

For some inexplicable reason, the company did not react immediately to this, but let it continue over a period of several years.  The plaintiff ultimately took medical leave because of the stress, and then resigned, but not before she filed a charge of race and sexual harassment with the EEOC.

The 4th Circuit had little trouble in reversing the trial court’s determination that the male sales representative's conduct did not rise to the level of harassment, and even if it did, the employer was not liable because the conduct was by a third party.  Using the standard that the employer must “know or should have known” of the third party’s action to impose liability on the employer, the court quickly determined that there was plenty of evidence that the company knew of the harassing conduct, knew it was unwelcome, and knew it was having a significant effect on the plaintiff.  The plaintiff’s supervisor herself referred to the third party sales rep as a “pig” and acknowledged to the plaintiff on several occasions that his conduct was inappropriate.  The court also noted that it was only after three years of this that the company finally woke up and determined that it needed to act against the harasser by banning him from the premises.

That late recognition was not enough to escape liability.  The message here is the same as it has always been – do not allow your employees to be subject to actionable behavior, whether it comes from co-workers, supervisors or third parties.

Federal Regulatory Law Trumps State Law Wrongful Termination Claims

As the federal regulatory scheme expands in covering various industries, it's important to remember that these regulatory systems frequently act to preempt state coverage of employment law issues, particularly in the area of retaliation.  The federal government maintains anti-retaliatory legal regimes in aviation, energy, securities, banking, and a host of other areas.  Frequently it is to the advantage of the employer to be able to move a case from state court and to either a federal court or federal administrative law forum.

That’s what happened in a federal Ninth Circuit Court of Appeals case involving a flight engineer (pilot) and his employer, Japan Airlines.  The plaintiff alleged that a fellow pilot was not medically qualified or fit to operate an aircraft.  This is a classic safety of flight complaint, and an employee who raises such an issue is protected under FAA law and regulations as a whistleblower.  The plaintiff alleged that following his complaint, JAL in retaliation required him to undergo psychiatric evaluation and prevented him from working as a flight engineer.  The flight engineer sued claiming a violation of the California state law whistleblower statute, along with a wrongful termination in violation of public policy count (another state claim), and a violation of AIR21, a federal statute which deals with retaliation protection for whistleblowers under the federal aviation law.

The Ninth Circuit determined that the FAA whistleblower law and its retaliation provisions preempted any state law claims because of the nature of the plaintiff’s allegations.  Specifically, by complaining about pilot qualification and medical standards, two areas where the federal regulatory framework is so pervasive and federal interest so dominant that states are presumed to have no interest, the plaintiff pleaded himself out of state court.  The court noted that there was no such federal preemption with respect to employment law or related aviation claims such as race or gender discrimination, but that safety of flight issues were solely a federal matter.  Just something to keep in mind if you work in a highly regulated federal arena.

Thursday, May 15, 2014

The New York Times Will Need to Start Using Its Online Thesaurus

To find similes for the word "hypocritical". Really, the irony here is just too rich-the Gray Lady, ostensible supporter of equal rights, slayer of the patriarchy, champion of political correctness everywhere, can't handle a single request by its executive editor for equal pay.

Seriously, you can't make this stuff up.

Tuesday, May 13, 2014

The NFL Hits Just Keep On Coming

Tortious interference with a contract, anyone?  I can understand why South Florida University suspended its strength coach after he made comments that probably reflect some deep frustration with the former player.  But his knock on the 49ers' draft pick expose him and his employer to a potential lawsuit for interfering with this kid's livelihood.

Just another bad Twitter outburst--seriously, teams should start getting policies in place on this stuff.

Employers Increasingly Turn to Social Media for Unfiltered Information About Their Workforces

Companies that are not using Facebook and other social media to screen hiring candidates will soon be in the minority. The very thoughtful discussion in this article contains survey data indicating that almost 40% of employers are using social media as an aid in hiring. More importantly, almost half of those screening with social media found something on a candidate's site that disqualified her from the position she sought.

50% is a pretty big number. And it's more than twice the number of employers that discovered something that caused them to want to hire a candidate.

Moreover, given the firestorm that is breaking over what several professional football players tweeted about the NFL's first openly homosexual player, many companies view their employees' social media posts as a ticking time bomb of liability. The article notes that healthcare professionals, for example, discussed private patient information on their social websites, sales employees e-mailed or posted customer credit card and account information to sites outside the company firewall, and any Google search will show dozens of examples of inappropriate comments about jobs, bosses, coworkers, company leadership, etc. leading to unwanted publicity and legal exposure.

So the short answer for employers is to have a social media policy that doesn't excite the folks over at the NLRB, but delineates employee responsibilities and company standards. At the same time, the company should have an operations policy that describes for managers how the company social media policy will be monitored and enforced.

Once again, it's good to be an employment lawyer.

Monday, May 12, 2014

Leaked Johnny Football Scouting Report Raises Some EEO Concerns

Call me hypersensitive, but if I had a client that was using prehire reports like the allegedly legitimate scouting report on Texas A&M star quarterback Johnny Manziel, I'd be on the phone to them with some advice. Starting with, "Set aside some money for employment litigation expenses."

The overall tenor of this thing is troubling, and some of the language is outright problematic. I'm thinking specifically of the comment that Manziel has "outlaw bloodlines", which clearly implies that some of his reckless behavior is attributable to a genetic quality on his father's side. This is, as we say in the business, "a smoking gun" for genetic discrimination, which violates the federal Genetic Information Nondiscrimination Act.

As with any entertainment business, character issues are a crucial hiring factor in the NFL. But attributing character traits to some type of genetic anomaly (at least without an ironclad medical basis) is just idiotic. And it's especially idiotic to put your prejudices in writing, in a nonprivileged document that could readily be discovered in litigation.  I'm not sure that Mr. Manziel has a case personally, since he was taken earlier in the draft and New England did not have a chance to effectuate the bias contained in the report. But if this is the kind of information that is routinely placed in the scouting reports, NFL clubs are opening themselves up to potential litigation.