Fascinating Insight Into the Hiring Process

This is a really interesting article about how hiring decisions frequently get made with respect to middle and upper level entry positions in professional organizations, such as law firms and banks.

When employment discrimination law was in its infancy, everyone recognized that a significant barrier to hiring minority candidates was the so-called "Old Boys Club" mentality in recruiting and hiring staff that essentially sought to hire people who looked like the interviewers. Apparently, notwithstanding the best efforts of the EEOC, internal training, videos, coaches, and lawsuits to eliminate this mindset, the trend is very much alive. The article documents studies showing how crucial it is to go to the right school and develop the right social mores because job interviewers who are the gatekeepers for these positions filter people immediately based on these type of factors.

If the article's conclusions are correct, then the so-called diversity efforts throughout the country are totally worthless because they focus on the wrong issue. I don't have an easy solution, but I think I have a better understanding of the problem after looking at this article and its underlying data.

Genetic Information Is Where You Find It--The Expansive GINA

Here's a worth-reading case out of the Eleventh Circuit that deals with the little-known Genetic Information Nondiscrimination Act, better known as "GINA". I say "little-known" not because the statue is obscure - in fact it's received plenty of publicity- but because employers as a whole seem manifestly unaware of the significant implications of the law. The case provides a useful standard for employers, and a cautionary tale about how even relatively straightforward employer enquiries can trigger statutory liability.

Plus the facts of the case are pretty entertaining. The employer shipped and stored food products for grocery stores in the area. Someone or someones unknown with a terrible sense of humor, or a bad sense of bathroom etiquette, began defecating in the company's warehouse. This is not exactly a practice that you want to encourage, particularly when you are shipping foodstuffs. The company launched an immediate investigation

Part of that investigation involved taking DNA swabs from employees in the affected warehouse and comparing them to, well, samples. The two plaintiffs were subject to this procedure, and were found not to be the culprits. However, they filed charges with the EEOC alleging that the employer violated GINA because it required them to provide genetic information and then illegally disclosed that genetic information to others.

The case eventually reached federal court, where both sides moved for summary judgment. The plaintiffs argued that the employer's use of DNA testing in the investigation was a plain violation of the language of GINA, which makes it an unlawful employment practice for "an employer to request, require, or purchase genetic information with respect to an employee." The employer argued that the term "genetic information" in the statute referred only to information relating to someone's propensity for disease or illness.  This, of course, was precisely what GINA was aimed at, but the court, apparently using proper methods of statutory construction, and not the Supreme Court's method in the King v. Burwell decision, went with the plain language of the statute. The court found that the request for genetic information from the employees was a GINA violation and entered judgement for the employees.

It's worth looking at the opinion for a nice view of how statutes are supposed to be reviewed by courts, but also as a general warning to employers that any type of genetic inquiry, forensic or otherwise, is suspect under this law. Moreover, off-hand comments about family traits are prohibited, as well. See my earlier blog post about how the NFL apparently violates this rule.

Most companies remain blissfully unaware of the requirements of the statute. This opinion is a nice wake up call for all of us.

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.

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.

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.