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Document your promotion selection process, or else

By Sindy Warren on February 21, 2012 in Our Blog

IRS employee Gary Hamilton can proceed to trial on his claim that his non-selection for a promotion was based on his race, the D.C. Court of Appeals recently held. The reason? His employer did not sufficiently document the reasons for Mr. Hamilton’s non-selection and its selection of a white competitor. According to the IRS, the competitor performed better during the interview process. But alas, there was no contemporaneous documentation to support this claim. Therefore, according to the court, it could not rule out the possibility that discriminatory motive played a role in Mr. Hamilton’s non-selection.

This case might seem a little cart-before-the-horse-ish. Shouldn’t the plaintiff have to show some evidence of discrimination? Not according to the court. So employers, listen up: Make sure to document promotion (and all employment) decisions at the time those decisions are made. A little documentation can go a long way towards disproving a discrimination claim.

An example of gender-based stereotyping

By Sindy Warren on January 25, 2012 in Our Blog

We know gender-based stereotypes persist, right? At least that’s what statistics suggest. A mere 3.6% of Fortune 500 CEOs are women. When it comes to Fortune 501-1000 companies, women represent 3.5% of the CEOs. And, women continue to earn $0.81 for every dollar a man makes. These numbers do not necessarily translate into discrimination. It could be, for example, that women typically don’t negotiate their starting salaries, while men do. But something seems to be going on, and claims of gender discrimination in the workplace certainly show no signs of abatement.

A friend of mine traveled to Chicago last weekend. There was a major winter storm going on and the plane actually turned back to Cleveland three times before eventually landing safely at O’Hare. Passengers were understandably anxious. The normally 45 minute flight took about five hours in total, including a couple of de-icing episodes. My friend relayed that the pilot happened to be a woman. She overheard a few male passengers loudly complain to the flight attendants (also female) about the pilot’s gender. ”Why is a woman flying this plane?” one demanded to know. One flight attendant in particular defended her sistren, claiming she was one of the airline’s top pilots. Sure enough, when it came time to land, the pilot maneuvered the plane so expertly that my friend did not even realize they had touched down. As the passengers exited the plane, many stopped to thank the pilot for her good work, including the obstreperous male passenger, who apologized for his remarks.

What do I make of this anecdote? Stereotypes persist, whether subtle or overt. The best way to deal with them is head on. In other words, train: respect in the workplace training is a great investment, as it raises awareness in an engaging, non-threatening way.

“All-American Muslim” and Lowe’s: an HR perspective

By Sindy Warren on December 13, 2011 in Our Blog

The TLC reality t.v. show “All-American Muslim” follows the lives of five Muslim families in Dearborn, Michigan. One of the show’s themes is the lingering discrimination American Muslims confront in the post 9/11 world. Home improvement retail giant Lowe’s demonstrated just how spot on this theme is last week when it pulled its advertising from the show in response to pressure from Florida Family Association, a conservative Christian group that lobbies companies to promote “traditional, biblical values.” The Christian group apparently objects to the show because it portrays Muslims too positively, making them look like normal Americans. Lowe’s caved to the group’s pressure and pulled its ads, claiming the show has become a “lightning rod.”

The public reaction has been pretty swift and severe, which in my opinion is a good thing. The Florida Family Association’s objection to the show is bigotry, plain and simple. Many consider Lowe’s decision to be swayed by the group’s lobbying efforts to be spineless, at best. As one Muslim community leader analogized, imagine the reaction if a company pulled its ads from “The Cosby Show” or “Seinfeld” based on objections that they portrayed African Americans or Jews as normal people. Society would be outraged.

It’s undeniable that stereotypes about Muslims are pervasive. How does this fact impact employers and HR? They must tread carefully when confronted with such prejudices and remember a couple of important rules. First, customer bias is not an excuse for discrimination. The courts are unanimous on this point. Second, they must be vigilant in preventing and responding to any potential harassment issues in the workplace. As in football, a good defense can be the best offense. If you see these issues brewing, act quickly to train your employees on your (hopefully impeccably written) anti-discrimination and harassment policies in particular, and on respect in the workplace in general.

Just because you’ve seen it on a sit-com doesn’t mean it’s ok at work

By Sindy Warren on September 27, 2011 in Our Blog

Have you ever seen a show making fun of how white men dance? Heard reference to the white man’s shuffle or the “overbite”? The image that probably pops into your head is a horribly uncoordinated rhythm-lacking guy trying to dance (but not really succeeding). This skit can be funny. Hilarious, even. But this does not mean it’s a permissible workplace topic. A case decided by the Eleventh Circuit earlier this year held an email circulating around about how white men can’t dance was downright discriminatory.

In Smith v. Lockheed-Martin, a white employee was terminated for circulating a “joke” email discussing why African Americans are not NASCAR drivers. An African American employee later circulated a “joke” email about how white guys are poor dancers. Unlike his white counterpart, he received a short-term suspension. According to the Eleventh Circuit, the differing responses revealed that the employer was taking race into account, which was discriminatory.

The main take-away of the case is that employers need to ensure their anti-discrimination policies are applied in a consistent and non-discriminatory manner. Equally interesting, to me at least, is the court’s opinion that a fairly mainstream and even comical racial stereotype about white men and their ability to dance can constitute discrimination.

Make sure to emphasize in your anti-discrimination training that any and all references to someone’s race should be completely off limits.

A performance improvement plan is not an “adverse employment action”

By Sindy Warren on September 8, 2011 in Our Blog

The Third Circuit just joined a bunch of others in holding that placing an employee on a performance improvement plan (PIP) is not an adverse employment action for purposes of bringing any kind of discrimination charge. The plaintiff in Reynolds v. Department of the Army was placed on a PIP, retired, and sued for age discrimination. Upholding the lower court’s dismissal of the case, the Third Circuit reasoned that the floodgates would open if PIPs were considered adverse actions. How else is an employer supposed to impress upon an employee that improvement is required, and required now? PIPs can be very effective tools for helping employees meet their employer’s expectations. To punish employers for using that tool would be strange.

In my HR consulting practice, I come up time and time again against employees who believe that being held to their employer’s performance standards is somehow unfair, discriminatory or harassing. Au contraire. It is important that your employees really get this. The non-supervisors, so they stop crying wolf. The managerial employees, so they do not feel hamstrung when managing performance. What’s the best way to communicate this? Training.

Attempt to repeal “don’t ask don’t tell” fails, for now

By Sindy Warren on December 10, 2010 in Our Blog

Yesterday, the bill that would have repealed the ban on gay and lesbian soldiers serving openly stalled in the United States Senate. Senator Harry Reid called for a vote on a procedural issue that would have cleared the way for the bill’s passage, but despite a majority in favor (57 to 40), there was not a “supermajority” necessary to block the Republican’s filibuster of the bill. What does this mean? It is unlikely the ban will be repealed this year. While a couple of senators floated the idea of bringing a stand-alone bill on don’t ask don’t tell — as opposed to it being part of a broader military bill — to the Senate floor before the year is out, the prospects of success are limited.

What does this have to do with the workplace? Expect tensions to continue to run high over the lack of legal protection for gays and lesbians, at least at the federal level. I believe change is still in the air, but it is coming slowly, to be sure. The proactive employer should still consider adding sexual orientation to their internal policies (even if in a state that does not afford its own protection). Remember that many courts have extended anti-discrimination protection to homosexuals despite their exclusion as a “protected category” under Title VII, under the guise of sex discrimination (generally, discrimination based on sexual stereotypes).

NPR’s firing of Juan Williams: Politics aside, not a textbook example of how to fire with dignity and respect

By Sindy Warren on October 26, 2010 in Our Blog

Last Wednesday , NPR news analyst and Fox News commentator Juan Williams was summarily fired from NPR as a result of comments he made on Fox News’ The O’Reilly Factor. In a conversation about political correctness as it pertains to the national dialogue about Muslims, Williams stated that when he sees people in Muslim garb boarding an airplane, he feels nervous. NPR responded quickly by firing Williams for allegedly violating their journalistic standards. NPR’s Vice President Ellen Weiss called Williams to inform him of his termination. According to Williams, he asked if he could come in and discuss the issue, but Weiss responded that the decision had already been made by her higher-ups. Subsequently, amidst a growing firestorm of criticism over the firing, NPR CEO Evelyn Shiller made publicly that Williams should have kept his personal feelings to himself, or only shared them with his psychiatrist and/or publicist.

Regardless of the heated political issues involved in this incident, and there are many (e.g. political correctness, stereotyping, the call to end public financing of public radio, etc.), there are some useful lessons for employers. First, don’t be too quick to pull the termination trigger. NPR may well have been within its rights to terminate Williams. But it never gave him a chance to discuss the matter. Second, deliver the news in person. NPR called Williams to deliver the bad news — hardly a personal touch, particularly given his long career with the organization. Third, don’t disparage employees or former employees, especially publicly. NPR’s CEO made some pretty inflammatory statements about Williams, calling into question his ethics and mental stability.

As we’ve said before, firing with respect and dignity is one of the most proactive things an employer can do to avoid litigation.

Thorough investigation saves employer’s day in court (again)

By Sindy Warren on October 18, 2010 in Our Blog

Late last month, the Third Circuit Court of Appeals upheld the dismissal of Deborah Wood’s discrimination, hostile work environment, and retaliation claims. Wood was a systems analyst at the University of Pittsburgh who was laid off, along with sixteen other employees, due to a decrease in funding. She promptly sued the University, alleging (among other things) that its response to her internal complaints had been inadequate. The court took the opposite view, however, characterizing the University’s response “extraordinary.”

A couple of years prior to her discharge, Wood complained that someone was tampering with her computer. The University launched three separate investigations into the matter. First the supervisor investigated the allegations, with the help of the computer department. Then, when Wood elevated the complaint to HR, HR instigated a separate investigation. Still not satisfied, Wood sought the assistance of the campus police, as she believed someone had broken into her office. Again, an investigation was immediately commenced. None of the investigations were able to substantiate Wood’s claims.

While it is certainly not essential for employers to conduct repeat investigations is the complainant is unsatisfied with the initial results, this case aptly demonstrates that courts look favorably upon employers who take action when confronted with employee complaints. Make sure you know where to turn when an internal complaint arises (hint: Warren & Hays).

Solid and detailed documentation of performance kills discrimination claim

By Sindy Warren on September 23, 2010 in Our Blog

The Sixth Circuit Court of Appeals recently upheld the grant of summary judgment to an employer who did an outstanding job documenting an employee’s performance issues. In Brown v. The Ohio State University, a long-time employee with solid performance for many years started to falter. Shortly after receiving a promotion, a few negative trends in her performance emerged, including difficulties communicating with co-workers. The employer meticulously documented each issue as it arose, and placed the employee on a performance improvement plan. Her failure to meet the stated goals resulted in a demotion. Still, the performance problems continued and the employee was eventually terminated.

When she sued for race discrimination, the employer pointed to her performance problems as a legitimate, non-discriminatory reason for the termination. The district court was persuaded, as was the Sixth Circuit on appeal. The court noted:

“Brown protests that some objective measurements of her performance indicate that she was succeeding, but such an argument does nothing to address the reasons actually advanced for her demotion and termination, which were grounded in her attitude, communication style, decisionmaking and leadership skills, and in her lack of responsiveness to her supervisors’ concerns about these shortcomings.”

What makes this decision stand out for me is that the court acknowledged that the softer skills, such as communication style, were just as worthy of review as other, more objective measures of performance. In the end, it was the consistent and detailed documentation that made all the difference.

It’s not enough to simply tell your supervisors to document. Invest in some solid documentation training – the payoff is worth it. Warren & Hays can help.

Discrimination against Muslims and the “Ground Zero mosque”

By Sindy Warren on September 16, 2010 in Our Blog

I’m a big fan of Jon Hyman’s Employer’s Law Blog. I read it daily and am often inspired by Jon’s knowledge and passion about all things employment law. There was a very interesting post a couple of days ago about the increasing trend of discrimination against Muslims. As usual, Jon offered an insightful analysis of the legal issues involved (namely, national origin and/or religious discrimination claims) with some newsworthy cases thrown in. He then went on to discuss the politically divisive issue of the controversial plans to build a “mosque” at Ground Zero. I’ve put mosque in quotes, because the plans actually involve a community center which has a single prayer room. Because this issue is one I’ve been thinking about a lot, and it has been receiving extensive media coverage, I’d like to offer my two cents, for what it’s worth.

Frankly, and I understand that I may be in the minority here, I do not understand what all the fuss is about. A group of Muslims wants to build a community center in downtown Manhattan, a few blocks from the site of the 9/11 attacks. This group had nothing whatsoever to do with 9/11, and indeed are victims of the attack just as much as any other American. I would see things quite differently if Al Queda wanted to build a memorial of some sort at Ground Zero. But that is not what is going on here. I’ve considered how I would feel, as a Jewish person, if a group of Germans wanted to build some structure honoring their national identity near the Holocaust museum. No problem. Germans in general are not responsible for the Holocaust; the Nazis were. Now if a group of neo-Nazis or Holocaust-deniers wanted to honor their presence near the museum, I’d have a negative visceral reaction, regardless of their First Amendment rights. In his post, Jon discusses the need for both sides to have empathy and be open to the others’ experiences, as a way to move to a more healing place. Excellent point. But it does not change the ultimate fact that the anti-Muslim sentiment is rooted in stereotypes, which are simply a proxy for discrimination.

Who knows what the outcome will be in this case. Whether the community center gets built as planned or moves somewhere else, I look forward to the day when people are judged solely on their merits without any reference to their national origin or religion. We’re not there yet.

An unusual case where no religious accommodation was required

By Sindy Warren on August 25, 2010 in Our Blog

Earlier this month, the Third Circuit upheld a prison’s refusal to accommodate three female employees who wanted to wear khimars, Islamic religious head scarfs. In EEOC v. GEO Group Inc., the defendant employer was a private company that contracted to operate a prison facility in Pennsylvania. In 2005, the prison adopted a strict dress code that prohibited any types of hats, scarfs, or other head coverings, unless part of the issued uniform. The policy was strictly enforced, and the prison warden refused to permit three Muslim employees wear their khimars, despite their protests that they needed to do so for religious reasons. Acting on behalf of the employees, the EEOC sued under Title VII’s prohibition against religious discrimination. The court was persuaded by the defendant’s claimed safety concerns, namely that the khimars could be used to strangle a prison guard or to smuggle contraband into the prison.

The duty to accommodate religious beliefs is a serious one, and often carries the day in religious discrimination lawsuits. This case highlights the major exception employers can rely on: safety.

Religious prejudice and your workplace

By Sindy Warren on August 20, 2010 in Our Blog

I saw a headline yesterday that really upset me. It referred to a recent poll showing that one in five Americans think President Obama is Muslim. In response, a White House spokesman insisted the President is a Christian who prays daily. The brouhaha seems to have stemmed from the ongoing public debate about whether Muslims should be permitted to build a mosque/community center in the vicinity of the World Trade Center site.

Why did the article upset me? And, more importantly, what does this have to do with you? It is beyond dispute that President Obama is Christian, always has been, and always will be. The fact that so many still do not know this, or are so easily misled by false information, is alarming. Even more striking to me, though, is that people care about his religion. ”Muslim” has become almost a dirty word, and this should concern every employer, regardless of your political or religious leanings. When prejudice becomes socially acceptable, it is all the more likely to spill into the workplace. However, it is just as illegal as any other type of prejudice, such as stereotypes based on race or gender.

There was a sharp increase in religious/national origin discrimination claims after 9/11. The EEOC went after them just as hard as any other type of claim. Make sure to include this type of potential discrimination in your supervisory training, and stay on the lookout for brewing problems.

The debate over Arizona’s controversial immigration law migrates to Ohio

By Sindy Warren on August 3, 2010 in Our Blog

At a City Club of Cleveland forum a couple of weeks ago, State Representative Courtney Combs called for an Arizona-style crackdown on illegal immigration. The Arizona law, which we blogged about last month, contains sweeping measures critics have labeled as inviting racial profiling, including requiring police officers to stop anyone they believe might be in the state illegally. Representative Combs has launched a similar campaign in Ohio, where he hopes to garner enough support to get a similar law on the Ohio ballot next year. Combs’s views upset the other panel members of the forum, including local immigration lawyers and the executive director of the local NAACP. They opined that Ohio should welcome, not scare away, people of all national origins and races.

In the meantime, it is worth noting that a federal judge struck down some of the most controversial provisions of the Arizona law, deeming it unconstitutional. Fierce public debate, including the arrest of peaceful demonstrators who oppose the law, ensued. No doubt the controversy will continue to swirl. And Combs’s stated efforts will ensure that debate occurs here in Ohio, too.

Employers should continue to follow the Arizona law’s progression, as well as efforts to enact a similar law in Ohio. Keep your ears close to the ground to make sure the controversy is not affecting the workplace. If it is, remind employees of your commitment to a discrimination-free workplace, and take steps to ensure that commitment is being honored.

Customer preference is not an excuse for discrimination

By Sindy Warren on July 29, 2010 in Our Blog

It is well-established by now that customer preference is not a defense to a discrimination claim. But just in case employers need reminding, a case decided by the Seventh Circuit last week does just that. In Chaney v. Plainfield Health Center, the defendant nursing home honored the wishes of some of its patients that they receive care only from white nursing assistants (“CNAs”). It made a notation on an assignment sheet for employees that certain residents “Prefers No Black CNAs.” The plaintiff, a black nursing aid, was given this sheet as a reminder of which residents to avoid. While the trial court (shockingly) upheld this restriction, the Seventh Circuit reversed, holding that Title VII does not permit employers to discriminate based on race in order to appease customers.

To me, the surprising thing about this case is that it needed to be filed. Employers should be savvy enough to know that the kind of blatant race discrimination at issue here is simply not permissible. Make sure your basic supervisory anti-discrimination training covers topics such as this one. Ours always does.

Discrimination based on weight: prohibited by GINA?

By Sindy Warren on July 26, 2010 in Our Blog

We’ve blogged before on the Genetic Information Nondiscrimination Act (“GINA”), and what it means for employers. Another potential implication of the law is making it illegal for an employer to refuse to hire someone because they are overweight. (Thanks to the Delaware Employment Law Blog for this one). GINA makes it illegal for an employer to base an employment decision based on someone’s genetic makeup. Being obese, and even overweight, is surely, at least to some degree, based on genetics. Thus, an employer who refuses to hire someone because he is obese or overweight is skating on thin ice.

We think it is just a matter of time before this theory is tested with the EEOC. Make sure to include genetic-based discrimination in your policies and supervisory training.

Sometimes, the equal opportunity jerk defense prevails

By Sindy Warren on July 7, 2010 in Our Blog

Yesterday I blogged about a recent case wherein the Fourth Circuit court of appeals rejected a defense of “I harass men and women alike, so it wasn’t harassment ‘based on sex.’” In response to the post, I received an email about another case involving essentially the same defense (thanks to Ross Runkel, Editor of LawMemo, Inc.). The case, Alvarez v. Royal Atlantic Developers, Inc., decided by the Eleventh Circuit on July 2, 2010, demonstrates that given the right set of facts, the equal opportunity jerk defense can win the day.

In Alvarez, the plaintiff sued for national origin discrimination and retaliation. Her retaliation claim and the court’s treatment of it may warrant another blog. But for today, I’d like to discuss the discrimination claim. Ms. Alvarez was terminated from her controller job because she did not meet the impossibly high standards set by her boss. The court referred to the “Vince Lombardi Rule” — namely that no player could accuse the famous coach of discrimination because he treated them all like dogs — in affirming summary judgment for the employer. Unfortunately for Ms. Alvarez, her boss was the Vince Lombardi of CFOs. The judicial opinion begins:

Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that [Alvarez's boss] is one of those people.

Because her boss treated everyone the same way, regardless of national origin, Ms. Alvarez’s discrimination claim could not stand. The court colorfully summarized this conclusion:

So far as job discrimination law is concerned, Heidi was within her rights to insist on a controller who could whip the company’s books into shape overnight while accommodating her own prickly personality and performing every task perfectly, even if there was little or no chance she would ever find such a miracle worker.

Despite the Alvarez decision, I would caution employers who maintain Vince Lombardi-types in their ranks. Bad bosses are never good for employee relations and productivity, even if they can squeak by summary judgment in a discrimination case.

The immigration debate and your workplace

By Sindy Warren on July 1, 2010 in Our Blog

In April, Arizona passed an extremely tough immigration law that garnered a lot of national attention. The law makes it a crime for immigrants not to carry immigration documents with them at all times, and requires police to question anyone they suspect of being in the country illegally. It has generated a lot of outrage, as opponents call it an open invitation for harassment and discrimination against Hispanics and other minority groups. Even President Obama weighed in, sharply criticizing the law, though it is highly unusual for a president to weigh in publicly on state legislation. The law, according to Obama, threatens “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”

What does this have to do with the workplace? The topic of immigration reform is politically “hot” now, in large part due to the spotlight placed on the Arizona law. It is likely to find its way into workplace banter. This can often take the form of risky conversations about national origin and race that can be offensive to some workers.

Employees are entitled to their political opinions, to be sure. But when expressing them at work intersects with protected categories under the law, employers should take heed. Be proactive and train managers and employees on appropriate workplace speech, as it relates to harassment and discrimination laws.

Educational requirements can be discriminatory, according to the EEOC

By Sindy Warren on June 28, 2010 in Our Blog

In an informal discussion letter released on March 29, 2010, the EEOC opined that setting an educational requirement for a particular job can be discriminatory. If such a requirement has a disparate impact on minority candidates, the employer would need to show it was “job-related and consistent with business necessity” and that no equally effective alternative selection procedure exists. This is a pretty high standard to meet.

Before setting educational requirements for jobs, employers should ask themselves whether the stated degree is really necessary to perform the job. In many instances, prior job experience or training can be just as good. A surefire way not to run afoul of the EEOC’s position on this issue is to state the desired degree and then to qualify it with “or related experience/training.”

You don’t have to retain insubordinate employees

By Sindy Warren on June 16, 2010 in Our Blog

It’s nice when a court decision affirms common sense. The Seventh Circuit recently did just that in Everroad v. Scott Truck Sys., Inc. Following her termination for insubordination, the plaintiff sued, alleging she had been subjected to age and gender discrimination, as well as retaliation. Both the trial and appellate courts found for the employer.

The evidence showed that the plaintiff engaged in several verbal skirmishes with co-workers and customers. The coup de grace was her telling her bosses they were “nuts, crazy, insane, and sick” and that the co-worker with whom she’d had a problem was a “f-word b-word”. The employer said enough is enough and terminated her employment.

Fair enough, said the courts. The Seventh Circuit held that being insubordinate is inconsistent with meeting the legitimate expectations of the employer. Furthermore, terminating someone for insubordination constitutes a “legitimate, nondiscriminatory reason” sufficient to overcome a prima facie case of discrimination.

While there are a lot of legal rules to navigate in today’s workplace, remember that you are still the boss and you don’t have to tolerate abusive employee behavior.

Failure to follow progressive discipline policy does not (necessarily) amount to evidence of discrimination

By Sindy Warren on May 4, 2010 in Our Blog

On March 16, 2010, an Ohio court of appeals affirmed summary judgment for an employer in an age discrimination case. In Wigglesworth v. Mettler Toledo Int’l, the plaintiff was terminated for performance issues. He pointed to the employer’s disregard of its own progressive discipline policy, as well as positive comments about some of his work skills in his performance reviews, as evidence of pretext. Not enough, said the court.

With respect to the plaintiff’s performance reviews, the court stated “the fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination.” With respect to the lack of progressive discipline, the court noted that the employer’s policy explicitly stated it was free to “at any time modify, withdraw, or disregard its policies, including its progressive discipline policy.” This language, coupled with the lack of evidence that the employer applied the policy more favorably to younger employees, convinced the court to toss the plaintiff’s case.

This case carries a couple of important lessons for employers. First, make sure your policies contain language providing you with flexibility, especially if you have a progressive discipline policy. Second, make sure your supervisors know how to manage performance. The supervisor in Wigglesworth got it right: his written reviews of the plaintiff’s performance were consistent with his stated reason for termination.

Allowing employee to catch a little “shut eye” on the job can be a reasonable accommodation

By Sindy Warren on April 15, 2010 in Our Blog

Last month, the Northern District of Ohio denied an employer’s motion for summary judgment in a disability discrimination case, permitting the plaintiff to proceed to a jury trial. Kathleen Maley, a long-term employee at EMH Regional Health Care Center, was terminated for sleeping on the job. According to Maley, though, she was merely resting her eyes so as to combat her periodic and debilitating migraine headaches. Maley stated she requested permission to shut her eyes from time to time as a reasonable accommodation, but her employer said no. EMH did offer to permit Maley to go home for the day when a migraine hit (using up her FMLA and sick time), but Maley did not like this accommodation.

In letting the case go to a jury trial, the court said Maley’s migraines could qualify as a disability under the law and that permitting her to rest her eyes periodically could have been a reasonable accommodation. The fact that EMH offered an alternative accommodation (e.g., sending her home for the day) did not alleviate its duty to accommodate. The court focused on an employer’s duty to engage in an “interactive process” with an employee when discerning the appropriate accommodation. EMH failed to do so here, and is now faced with the unenviable task of having to explain itself to a jury.

The take-away for employers is be careful when dealing with employees with potential disabilities. Remember the duty to engage in the interactive process in formulating a reasonable accommodation, and make sure supervisors understand this duty. If in doubt, call your lawyer!

Request for new office denied: retaliation?

By Sindy Warren on April 12, 2010 in Our Blog

Last month, a federal appeals court held that an employer’s denial of an employee’s request to move her office could amount to illegal retaliation. In Lockridge v. University of Maine, the plaintiff professor sued the university for, among other things, retaliation. After filing a sex discrimination charge with the state anti-discrimination agency, she asked to move her office from a satellite building to the department’s main building. Her employer denied her request, and in doing so made a reference to the plaintiff’s “continuing legal issues.” The court held that the denial could be an adverse employment action under retaliation law.

The court’s pronouncement in this regard is striking for a number of reasons. First, it demonstrates that retaliation claims can be incredibly broad-based. Actions far short of firing can support such claims. Second, it reinforces that the law in this area is, in many instances, counterintuitive. Finally, it suggests that employers who do not train their supervisors on retaliation law do so at their own peril. Supervisors are on the front lines of their employers’ efforts to guard against lawsuits. Don’t send them into battle unarmed.

Employer’s demand for a medical exam does not violate the ADA where there are safety concerns

By Sindy Warren on March 30, 2010 in Our Blog

The Sixth Circuit recently held that an employer’s demand for a medical exam does not constitute an adverse employment action under the Americans With Disabilities Act (“ADA”) where the employer has legitimate safety concerns. In James v. Goodyear Tire & Rubber Co., the plaintiff suffered from multiple sclerosis. His condition got progressively worse, to the point where he had to hold on to machinery for support, co-workers had to help him perform his duties, and he needed to be driven between workstations. His employer insisted he get a medical exam to determine his fitness for duty. Rather than submit to the exam, the plaintiff retired and then sued under the ADA.

In assessing the plaintiff’s claim, the court concluded the employer’s actions fell under the “direct-threat” provision of the statute, which permits employers to assess whether and to what degree an employee poses a threat to his or her own safety, as well as the safety of others. In short, if there is good reason to believe an employee cannot safely perform the job, the employer may require a medical exam, without running afoul of the ADA.

While this case smacks of common sense, it is a noteworthy decision for employers, as common sense does not always carry the day when it comes to the ADA.

Assigning black staff to black clients = discrimination

By Sindy Warren on March 22, 2010 in Our Blog

Suppose you have an employee who belongs to a protected class (such as race), and you also have clients who belong to that same protected class. Before you assume that your employee can better relate to your clients based on similar backgrounds, etc., think again (or call your lawyer). A 2009 case illustrates the danger in making such race-based assumptions.

Pamela Altman, a black employee of the Illinois Department of Children and Family Services worked as a child-protection investigator. She sued her employer for race discrimination, claiming she was repeatedly assigned to investigate cases in predominantly black inner-city areas (the “projects”). The court agreed, and the case is now headed to a jury trial.

This is just the kind of “subtle” discrimination plaintiffs (and the EEOC) are increasingly pursuing. And the courts are receptive. When you train your managers on the anti-discrimination laws, make sure to include the law’s expanding and less-obvious forms of bias, such as this one.

So the investigation is over. Now what?

By Sindy Warren on February 8, 2010 in Our Blog

Suppose you have successfully responded to a workplace complaint by conducting a prompt and thorough investigation and reaching findings of fact (or, better still, you outsourced the investigation to Warren & Hays). The investigation found an employee violated the company policy prohibiting harassment or discrimination. What is your next course of action? A notation in the personnel file? Yes, that’s most likely necessary, but not always sufficient. One-on-one “sensitivity” training can be an excellent resource.

It sounds good, but what is it, exactly? The offending party meets with an experienced third-party trainer. During the course of the meeting, the trainer reviews the company policy, provides a detailed overview of the legal landscape and how the offender’s actions fit into it, instills the fear of God in the offender (by raising the specter of such terrors as personal liability), and coaches the offender on how to best avoid similar situations in the future. The coaching portion of the session can provide the most helpful long-term gains, both for the employee and the employer. Murky areas such as management style, workplace communications, unconscious bias, and increased sensitivity are explored in an interactive way. The result is often a better informed, more aware supervisor who is eager to hone her new-found skills.

I often hear from the skeptical client, “but can people really change?” It is true that deeply-held biases and ingrained attitudes can be hard to shift. But it is just a true that behavior in the workplace can be altered by training, coaching and, yes, scaring offending employees.