It's Always A Mistake to Rush an FMLA Decision

Except in the most exigent situations, I always tell clients not to make precipitous employment decisions. This is especially true in circumstances where the decision is irrevocable, such as a termination. And it's really, especially, true when dealing with an FMLA situation. The statute itself and the associated regulatory framework are simply too complex for most employers to make a snap judgment regarding someone's entitlement to FMLA leave, or, even worse, a termination decision based on a denial of FMLA benefits.

So if I had been on the phone with the employer in this case, I would've told it to hold up before terminating the employee in question, who, as it turned out, was suffering from an undiagnosed case of diabetes.  The employee needed time off from work for a diagnosis, and applied for FMLA leave. Unfortunately, the paperwork that she turned in was not properly filled out. The company apparently sent the employee a denial letter, but when she did not respond, the company terminated her for missing too much work.

Bad move. FMLA regulations specifically require a seven-day waiting period between notification of an insufficient FMLA certification form and any type of employment decision, including denial of FMLA leave.  In this case, the court found that the employer jumped the gun-it should have provided formal notice to the employee of its denial, and then ensured that she had a seven day grace period in which to respond.

The implications here are not particularly surprising-an employer must make certain that it crosses its Ts and dots its Is when moving on a denial of FMLA leave decision. The opinion is a thorough and well-reasoned assessment of why FMLA cases must be treated with particular care.

Specious Lawsuit Costs Big Bucks

But this time, at least the losing plaintiff has to pay a sizable chunk of the defense costs.
Ellen Pao lost a very high profile, "try the case in the media" sexual harassment lawsuit last year. She has now been ordered to pay more than  $250,000 in attorneys fees to the defense team.
I've often argued that the only effective way to cut down on people filing cases that have no basis in fact or law is to shift more of the the risk of losing to the plaintiff's side. This decision does exactly that, and I hope we see more of these kinds of awards when there are defense verdicts.

UPDATE:  Ms. Pao's misfortunes continue.

Supreme Court Muddies Up the Religious Waters

Every now and then the U.S. Supreme Court issues an opinion that is absolutely idiotic. It doesn't happen often; even when I disagree with the Court's holdings, I usually understand the reasoning and the ramifications of the case. This is especially true in employment law decisions. But the Court's latest pronouncement on Title VII religious accommodation in EEOC v. Abercrombie & Fitch Stores, Inc. makes me want to pick the phone up, call Justice Scalia's chambers, and ask him if he had been testing out D.C.'s new recreational marijuana law before he sat down to write the opinion.

The facts are a little confusing, but probably reflect a situation that is more common than we'd like to think. A young woman who was a practicing Muslim came to interview for a sales job at Abercrombie wearing a headscarf, something that was part of her religious practice. The store assistant manager rated the young woman as qualified but was concerned that the scarf would be inconsistent with Abercrombie's "Look Policy", which focused on the appearance of its sales staff as a way of reinforcing the company brand. The assistant manager talked to the store manager and informed him that she believed (but was not certain because she did not ask) that the headscarf was related to the young woman's faith. The store manager responded that the scarf was inconsistent with the Look Policy, as was all other headgear, religious or otherwise, and vetoed the hiring.

The EEOC took the case up, won liability on summary judgment (highly unusual), and then at a trial on damages won $20,000. On appeal the Tenth Circuit  reversed the district court, concluding that an employer cannot be liable under Title VII for failing to accommodate a religious practice, unless the applicant/employee tells the employer that an accommodation is needed.

The Supreme Court, with Justice Scalia writing for seven other justices, reversed the Tenth Circuit, noting that Title VII contains no requirement for employer knowledge of a religious accommodation before liability attaches.  Drawing a hard and fast line between Title VII's intentional prohibition against certain employer motives, versus the employer's knowledge of religious entanglement, Justice Scalia held that an employer cannot make an applicant's religious practice, known to the employer or otherwise, a factor in employment decisions. He then went on to say that Title VII does not demand neutrality with regard to religious practices, but rather that Title VII gives religious practices favored treatment, requiring employers to avoid infringing on religious practices whether they are known to be so or not.

I thought this was a crazy thing to say when I first read the opinion, and subsequent rereading of it has not changed my mind. In at least a hat tip to common sense, Justice Alito writes a very nice concurrence that requires the employer to have a suspicion that the practice motivating its decision is religious in nature before liability will attach.

Here's the problem with the Court's opinion-while mainstream religions such as Judaism (a yarmulke), Christianity (a crucifix), and Islam (a hijab, headscarf, or beard) manifest themselves in certain well-known ways, the EEOC takes the position that all kinds of strongly held beliefs are religions, even ones that do not outwardly proclaim themselves with recognized symbols or displays. It is quite possible to imagine a scenario where someone who is a Druid and works for a building contractor is given an order to bulldoze trees from a construction site. Because he is an animist, the employee refuses. His refusal is not outwardly religious, and unless he has the presence of mind to volunteer his religious objection, it will not be obvious to the foreman, who is likely to simply fire the employee for refusing to carry out his instructions. Under these circumstances, an act of religious discrimination has occurred, according to Justice Scalia and his seven brothers and sisters.

Or even worse-someone who is a vegan attends his company's barbecue on the Fourth of July. The boss is cooking up hamburgers, and as the employee comes through the food line, the boss proceeds to scoop a burger, dripping with grease and animal protein, onto this person's plate. The employee takes the plate and promptly throws it into the trash because it's contaminated; the boss takes this action personally and terminates the employee the next day. Under the Scalia test, this is also religious discrimination.

Anyone who practices in this area could see this problem coming a mile away. I'm guessing none of the Justices' clerks practice in this area.  I'm hoping that this is one of those decisions that gets modified quickly by the Court.  Otherwise, the implications are highly problematic for almost any employer.