August 2010 Archives

August 25, 2010

Can a Nursing Home Honor Resident's Request for White-Only Staff?

Did you think the answer was an obvious "no"? Me too, but apparently an Indiana nursing home and a federal district court judge felt otherwise. The judge threw out the race discrimination case an African American certified nursing assistant (Brenda Chaney) filed against a nursing home (Plainfield Healthcare Center), despite the facts that (1) Chaney was admittedly barred from providing assistance to nursing home residents who requested "white-only" care; (2) coworkers referred to Chaney as a "black bitch" and used the N word in front of her; and (3) the basis and process for her firing were suspicious, even to Chaney's supervisor. If this isn't enough even to get a case in front of a jury, I don't know what is. The federal Court of Appeals for the Seventh Circuit felt likewise, and reinstated Chaney's case.

Statistics show that most disputes settle -- many before they turn into lawsuits, many more before a final judgment is reached, and yet more before the appeal stage. In my experience, the employment cases that don't settle are often fairly evenly matched: Both sides have some facts in their favor and some facts that hurt their claims. Because there's no way to predict an obvious winner or loser, both sides can see themselves winning. This makes it more difficult, psychologically, to settle, and sometimes leads everyone to decide they might as well roll the dice and take their chances in court. Cases in which one side clearly has the better of the argument are more likely to settle, unless one party is just dead set against it for some reason.

So what happened here? It's anyone's guess, but here's one thing that jumped out at me from the opinion: Plainfield really seemed to believe that it was entitled -- or even required -- to honor its resident's racial preference. The nursing home argued that it was simply following state and federal laws that allow patients to choose their own health care providers, and likened its situation to one in which an employer may hire based on gender for positions such as health care aides assisting with bodily functions, prison guards who will perform searches, or bathroom attendants.

There are two fatal flaws to this argument: First, Title VII recognizes that there are some positions for which it might be appropriate for an employer to hire based on gender. That's what the bona fide occupational qualification (BFOQ) defense is for. Putting on a traditional Shakespeare festival? Then you probably dont have to consider male actors to play Lady Macbeth. Hiring attendants for a communal women's fitting room? Likely the same. But race has played such an invidious role in our society that the BFOQ defense is not available when an employer makes distinctions based on race.

Second, the situations in which employers may distinguish based on gender all involve bodily intimacy or nudity. Our society recognizes this distinction based on privacy, not on a notion of hierarchy between genders. This is why we still have gender-segregated restrooms, locker rooms, and changing rooms, along with female Senators, judges, and doctors. In the past, we also had race-segregated movie theaters, lunch counters, swimming pools, drinking fountains and more, a distinction based not on privacy, but on racist notions about the inferiority of African Americans and the danger (or impropriety) of physical mingling among the races. With this opinion, perhaps notations such as "Prefers no Black CNAs" in patient charts can join these other relics in the dustbin of history. 

Thanks to our friends at SHRM for highlighting this case in its weekly email newsletter.

 

August 17, 2010

Librarian Fired for Refusing to Reveal Her Weight

Apparently, there's one fact that even those who specialize in providing information to others would rather keep to themselves: their weight. As reported in the Des Moines Register, Iowa librarian Lisa Bonifas refused to provide her weight (or her height) to be listed on a new identification card required by the city of Urbandale, along with her name, title, birth date, and fingerprints. The city said it got the idea from FEMA guidelines, and the information will help in identifying employees in case of emergency. Bonifas refused to provide the information, saying that it was an invasion of her privacy. The city suspended her, then fired her, for refusing to comply.

Many have commented that Bonifas's firing seems unfair, given her highly rated performance and the fact that her objection to stating her weight is widely shared. Whether you agree or disagree with the decision, however, it's hard to see any legal claims Bonifas could make here. Bonifas's objection to the requirement is based on privacy. Historically, however, weight has not been protected as a private fact: Mine is listed on my driver's license, as are the weights of people in many other states. Many commentators have pointed out that requiring people to list their weight is not that useful as a means of identification, as people lie about their weight, weight fluctuates over a person's life, and it's kind of tough to tell what a person weighs just by looking at them. All valid objections, but not the sort that can underpin a wrongful termination case for an at-will employee.

What about discrimination claims? Although obesity and its health effects may constitute a disability in some circumstances, Bonifas is not obese. If the city were making decisions based on weight, there might conceivably be a discrimination claim if that requirement screened out disproportionate numbers of employees in a protected class. According to recent data from the Centers for Disease Control, there is a racial disparity in obesity rates. If a weight requirement caused a similar disparity in job decisions and there was no legitimate business justification for the requirement, an attorney might be willing to argue over it. But again, Bonifas is not obese -- and the city wanted to list everyone's weight, not make it the basis for job decisions.

Which is not to say there's no evidence of different treatment in the way the story has been reported: Bonifas's gender -- and stereotypes about women and weight -- have featured prominently. I offer you the Des Moines Register ("I bet such a policy would never be written by a woman"), radio station KTAR ("Women are known to lie about their age or just keep it a mystery. How much they weigh can be a closely guarded secret as well"); and Inc. magazine ("Politeness dictates that you never ask a woman her weight").

 

  

August 11, 2010

Flight Attendant Freakout: A Sign of the Times?

By now, you may have heard about Steven Slater, the Jet Blue flight attendant who reportedly called a passenger a "f---ing a--hole" over the plane's public address system, grabbed some beer from the beverage cart, then deplaned via the emergency chute. (Slater's attorney said Slater had been hit in the head by a piece of luggage as two passengers were fighting over space in the overhead bin, then one of the passengers cursed him out once the plane had landed at JFK Airport in New York.)

This could have been just another case of "take his job and shove it," except that Slater has apparently become a hero to many -- and some say it's because all of us are working long hours, for less pay, and often at jobs that we don't really want. Economist Joel Naroff, cited in a USA Today article, says that businesses should see the Slater incident as a warning sign: Although many workers feel they must stay at their jobs now, despite layoff threats, pay cuts, and the rest, once the economy picks up, "it's going to be payback time." CNBC reports that it's "no surprise" Slater has become a hero, given that so many workers these days "are overworked and underpaid -- and they can't even threaten to quit or go somewhere else."  

August 4, 2010

Lawsuits and Facebook

Do you have your own page on a social networking site, like Facebook or MySpace? What about a Twitter account? Your own website or blog? No matter how you express yourself online, be ready to see it all tagged as exhibits if you ever sue your employer. And warn your friends, too: Your posts to their pages could also get in front of the jury.

Those were some of the takeaways from a recent article by Erin B. Meyer, in Law Technology News. When a client is served with a complaint from an employee, Meyer immediately looks for the plaintiff on social networking sites, prints everything that's open to the public, saves all pictures, and copies the names of the employee's friends, to see whether any current or former coworkers made the list. Then come the discovery requests and subpoenas for all posts (including those to which access is restricted) relating to the facts of the case, including the plaintiff's emotional state -- and, if any of this evidence is no longer available, a claim of spoliation: intentional destruction of evidence that, if proved, results in an instruction to the jury that they should assume the evidence would have been harmful to the plaintiff's case.

Sound shocking? Consider that employers have been requesting this type of evidence, albeit in low-tech form, since employment lawsuits began. If a plaintiff spoke to friends about harassment, for example, the employer is entitled to ask them what the plaintiff said. If the plaintiff makes a claim for emotional distress and keeps a diary or journal, the employer is entitled to see those portions that deal with the plaintiff's emotional state. Ditto for medical records. Portions of these records that are private and unrelated to the lawsuit can be redacted (blacked out) before they are handed over, but generally, anything the plaintiff has said or written that relates to the lawsuit is likely discoverable, unless it was said in the context of a privileged relationship (to a spouse or lawyer, for example).

Which raises a question for the modern age: Can any portions of an online post be considered truly "private"? After all, the term for posting content online is "publishing," which means to make something public. Even if some content is restricted only to friends, the average Facebook user has 130 of those. To my way of thinking, this makes restricted content less like a diary -- intended "for your eyes only" -- and more like kind of a large party. This makes the privacy argument different and harder to make. Really, a plaintiff in this situation is arguing about context rather than privacy (in other words, that statements made to a particular group of people for a particular purpose should not be available to other people for a different purpose). There may be some interesting jurisprudence to come on these issues, especially as technology continues to blur the line between our private and public lives. In the meantime, however, think before you post.