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March 2, 2011

Supreme Court Victory for Employees in Discrimination Case

Yesterday, the Supreme Court issued its much-anticipated decision in Staub v. Proctor Hospital, in which an employee claimed that he was discriminated against because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). This case has been dubbed the "cat's paw" case, after an Aesop's fable. (Justice Scalia's opinion recounts the narrative details, if you're interested; they involve a cat, a monkey, some roasting chestnuts, and a moral about princes and kings). The upshot in these cases is that one person has the intent to discriminate, but another person -- without a discriminatory motive -- ultimately makes the decision to fire the employee. In this situation, courts have split on whether the employer is liable for discrimination. 

In the Staub case, the evidence showed that Staub's immediate supervisor and her supervisor were hostile to his service obligations as a member of the Army Reserves. Both had made negative comments about it and were described as "out to get" Staub. Staub was written up for violating a rule about leaving his work area; he claimed that there was no such rule and, at any rate, he had not left his work area. As part of the disciplinary action, Staub was required to check in with a supervisor whenever he left his work area. Several months later, one of the hostile supervisors reported to Buck, the vice president of HR, that Staub had violated this directive by leaving his work area without checking in; Staub again denied the accusation. Buck fired Staub for violating the requirement.  

A jury found in Staub's favor, but the federal Court of Appeals reversed this victory. The Court found that Buck wasn't motivated by discrimination. In this situation, the company could be held liable for discrimination based on the hostile motives of the supervisors only if Buck "blindly relied" on their information in firing Staub. Because Buck looked into the facts a bit before making her decision ( the Court of Appeal admitted that her "investigation" wasn't very thorough) and wasn't "wholly dependent" on the recommendations of the hostile supervisors, the Court of Appeals found that the company wasn't liable. 

The Supreme Court overruled this decision. It found that an employer is liable if:
  • a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
  • the supervisor's action is a proximate cause of the action against the employee. 
Because Buck relied on the hostile supervisors' disciplinary write-up and version of the facts in deciding to fire Staub, rather than independently examining those facts -- and Staub's allegation that they were false and motivated by discrimination -- in making her decision, the company was liable. 

This is a big win for employees, not least because the language of USERRA also appears in Title VII and other laws prohibiting discrimination, so the effect of the case is likely to be far-reaching. Here are a few takeaways for employers looking to avoid cat's paw liability:
  • Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.  
  • Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company. 
  • Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies. 

February 9, 2011

Facebook Firing Case Settles

A few months ago, the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against American Medical Response, challenging its decision to fire an employee based on her Facebook comments criticizing a supervisor. (My previous post about the case is here.) After she was denied the right to have a union representative help her respond to a customer complaint, Dawnmarie Souza went home, logged on to her Facebook page, and compared her supervisor to a psychiatric patient. Other employee responded, and Souza posted additional critical comments. Then she was fired. 

The NLRB's complaint challenged not only the company's decision to fire Souza but also its policies on blogging and Internet posts, which prohibit "disparaging, discriminatory, or defamatory comments" about the company, coworkers, or customers. (It also challenged the company's refusal to allow her union representation.) The NLRB alleged that these policies were too broad, and infringed on employees' rights to engage in protected concerted activity by communicating with each other about the terms and conditions of employment. 

From the sound of the official release about the settlement, the NLRB got what it wanted: The company "agreed to revise its overly broad rules" to make sure that employees are not prevented from discussing the terms and conditions of employment and to refrain from disciplining employees for such discussions going forward. The company also agreed to grant employee requests for union representation in the future. (Ms. Souza's future at the company isn't clear; the press release indicates that her claims against the company were settled in a separate, private agreement.)
January 26, 2011

Another Supreme Court Win for Employees in Retaliation Case

The Roberts Supreme Court, markedly pro-business in many ways (as discussed in this recent New York Times article), has yet to meet a retaliation claim it doesn't like. This week, in Thompson v. North American Stainless, the Court found in favor of a man who claims he was fired because his fiance filed a sex discrimination claim against their mutual employer. 

In previous terms, the Court has found that an employee may bring a retaliation claim under Section 1981 (a Reconstruction Era civil rights law that prohibits race discrimination in contracts) and that a federal employee may sue for retaliation under the Age Discrimination in Employment Act, despite any explicit mention of "retaliation" in either law. The court also found in favor of an employee who claimed she was fired after answering questions as a witness in an investigation of another employee's sexual harassment claim (my previous post about the Supreme Court case here; and the jury's subsequent $1.5 million award in the employee's favor here). And, the Roberts Court also decided Burlington Northern & Santa Fe Railway Co. v. White, which held that retaliation under Title VII encompasses any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 

This is the standard on which Justice Scalia relied in this week's case, Thompson v. North American Stainless. Eric Thompson met Miriam Regalado when she was hired by North American Stainless in 2000, where he already worked. The two began dating and got engaged, a fact that was known throughout the company. Regalado filed a charge of discrimination against the company, alleging that her supervisors had discriminated against her based on gender. The company was notified of the charge in early 2003; several weeks later, Thompson was fired. He sued the company for retaliation. 

The federal Court of Appeals found that Thompson didn't have a valid claim, because it was his fiance who brought a charge of discrimination against the company. Thompson himself hadn't engaged in any "protected activity" under Title VII, and so had no basis for a lawsuit, even if the company fired him because of Regalado's EEOC charge. 

The Supreme Court disagreed, finding that Thompson could sue for retaliation. Firing someone's fiance is clearly the type of action that could dissuade a reasonable employee from asserting her rights, as the Court found. The trickier part, however, is who has the right to sue for that harm. In this situation, Regalado had the discrimination claim -- and was the target of her employer's retaliation, presumably intended to get her to drop the case -- but Thompson is the one who lost his job. The Court found that the language of Title VII, which allows a "person aggrieved" by a statutory violation to sue, goes beyond only those who have themselves engaged in protected activity. Adopting a standard used in other cases, the Court decided that Thompson could sue because he fell within the "zone of interests" protected by Title VII. Because the company fired him intentionally, with the purpose of undermining the goals of the statute, he had a right to his day in court. 

There has been a lot of discussion about whether this case will radically expand the number of retaliation charges (already at an all-time high -- and the most frequently filed charge at the EEOC in the past two years, surpassing even race discrimination charges). In other words, can a fired employee turn around and argue that he or she was fired because someone else at the company -- a manager or coworker -- filed a discrimination claim? Justice Scalia, who wrote the Thompson opinion, addressed this issue directly, saying that although "we acknowledge the force of this point," it justifies neither a blanket rule that bars all claims of third-party retaliation nor a rule that defines which third parties have a close enough relationship to the discrimination claimant to warrant a retaliation claim. So these issues will have to be decided case by case. 
December 13, 2010

Linking to WikiLeaks Could Cost You a Job, Universities Warn Students

Last week, the federal government warned its employees that the trove of diplomatic cables and other intelligence documents posted on WikiLeaks are still considered classified until they are officially declassified by an appropriate government agency. Employees and contractors who do business with the federal government were told that accessing this information on their work computers, personal computers, or portable devices was forbidden. When asked whether this meant employees would be fired for viewing the documents, a spokesperson for the Office of Management and Budget (OMB) ominously told CNN that such "breaches of protocols governing access to classified material are subject to applicable sanctions under long-standing and existing law."

The OMB warning didn't tell agencies to block employee access to the WikiLeaks site or other sites that posted the documents. But the Library of Congress did so anyway: Neither its employees nor its patrons may access the WikiLeaks site, according to the New York Times

Now, the warning has been extended to those who aren't federal employees or contractors, but one day hope to be: Students at the Columbia School of International and Public Affairs, for example, were sent an email message from the career counseling office, informing that that an alumnus working in the State Department recommended "that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government." (Check the whole message out here.) According to CNN, students at Georgetown and Boston University received similar messages.

These warnings have led to a lot of lively online discussion about free speech and the importance of allowing open debate of ideas, particularly in an academic setting. They've also led to some talk about how private employers might treat the same issue, particularly whether an employer might be legally justified in firing or refusing to hire someone who posted links to WikiLeaks or supported the group's policies on social networking sites. 

My two cents is that even though such a rule might be legal, it's tough to see why a company would want to go this route, given the resulting bad publicity and poor morale that would almost certainly result. Contrary to popular belief, the First Amendment protects us from governmental action or restriction only: It doesn't prohibit private employers from putting limits on speech. Other laws might, however. As I posted recently, the NLRB has said that private employers can't restrict employees from communicating with each other about the terms and conditions of employment, even if that communication takes place on a public website. And some states prohibit employers from taking action against employees based on their political beliefs, or on any legal activities they choose to engage in during their private time. In these states, a "no posting about WikiLeaks" rule wouldn't pass legal muster.  

November 16, 2010

NLRB Sues Employer for Firing Employee Over Facebook Post

Last week, the National Labor Relations Board (NLRB) filed a complaint against the American Medical Response Company. The NLRB charged that the company committed an unfair labor practice by firing a union employee, Dawnmarie Souza, for criticizing her supervisor on her Facebook page, and by adopting policies regarding blogs and other posted content that improperly restricted employee rights to communicate about their working conditions.

Souza was upset because she had been asked to respond to a customer's complaint about her work, and the company wouldn't allow a representative from her union -- the Teamsters -- to help her prepare the response. That same day, Souza posted negative statements about her supervisor on her Facebook page from her computer at home. Her initial post compared her supervisor to a psychiatric patient; other employees chimed in, and Souza posted more critical comments.  

The NLRB complaint (a copy is available here, at the Labor Relations Today blog) alleges that firing Souza for these posts is an unfair labor practice because it violates her right to engage in protected concerted activity: to communicate with other employees about the terms and conditions of employment. (Although Souza is a union member, this right exists whether a workplace is unionized or not.) And the NLRB isn't just challenging the decision to fire Souza: It also alleges that the company's policies on blogging and Internet posts, standards of conduct, and solicitation violate the law, because they improperly interfere with employees' rights to communicate with each other. Those policies prohibit, among other things, "rude or discourteous behavior"; and "disparaging, discriminatory, or defamatory comments" about the company, coworkers, or customers.

According to the New York Times, this is the NLRB's first complaint involving worker posts on social networking sites, but it isn't the first time the agency has considered the issue. In May of this year, the NLRB issued an advice memorandum -- in another dispute involving a medical transport company, oddly -- in which it found legal an employer's decision to discipline employees for Facebook posts suggesting they might withhold care from patients who personally offended them. Although it would have been illegal for the employer to act based on posts about ongoing labor disputes or the terms and conditions of employment, the employer had the right to act on posts indicating that employees would compromise the quality of patient care.

This case is just the next step in the rules on protected activity, which have continued to evolve so they address all of the places -- actual and virtual -- where employees might communicate. The NLRB previously decided cases about signs posted -- with thumbtacks -- on the company bulletin board, discussions in the locker or lunch room, and meetings on company property. In the past decade, it has had to decide cases on email, electronic bulletin boards, and posts to public websites. Social networking is simply the most recent popular spot for employee discussions.  

This case could also signal the beginning of a big change in the way many employers deal with employees' online activity. While some employers either place no restrictions on employee posts or impose only broad, business-related guidelines (for example, use a disclaimer when you discuss the company, don't reveal trade secrets, and so on), others go much further to prohibit employees from talking about the company at all. If the NLRB prevails, these employers will have to take another look at their policies to make sure they don't infringe on employee rights to discuss the terms and conditions of employment.

To learn more about employees' rights when it comes to posting job-related information on social network sites, check out Nolo's articles Fired for Blogging and Employee Posts on Facebook, MySpace, Twitter, and Blogs.

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."  

July 22, 2010

Checking Credit Reports? Check Your State Law First

If you review applicant or employee credit reports, you're undoubtedly already familiar with the Fair Credit Reporting Act (FCRA). Among other things, this federal law requires employers to get the consent of the employee or applicant before pulling credit and other consumer reports, to give notice if the information in the report might lead you to take adverse action (such as denying the applicant a job or denying the employee a promotion), and to give notice -- again -- if you do ultimately take the adverse action.

As long as you follow the rules above, the FCRA allows you to use credit reports for employment purposes, including to decide whether to hire, promote, or even fire. That's the federal law, however; some states see things differently. The economic downturn of the last few years -- and the resulting damage to credit reports and scores -- have led many politicians to reconsider whether it's really appropriate for employers to use credit reports in making job decisions. At least three states (Hawaii, Oregon, and Washington) have passed laws prohibiting employers from considering credit reports in most circumstances. According to the National Conference of State Legislatures, about 20 states are currently considering similar legislation. (See their detailed chart here.)  

May 5, 2010

EEOC Charge Filed for Illegal Firing Under GINA

Last week, Pamela Fink filed a charge with the EEOC, alleging that she was fired from her job after telling her employer that she carried the BRCA2 gene (linked to some forms of breast cancer) and had undergone a voluntary double mastectomy after her two sisters had both been diagnosed with the disease. According to news reports, this is the first publicized case under GINA -- and one of the first EEOC charges to allege wrongful termination rather than improper disclosure of medical information.

In this case, Fink told her supervisors about the genetic test results and her surgery. She said that she felt comfortable doing so because she had received positive reviews, merit increases, and bonuses. Once she returned from surgery, she claims that her job duties were taken away, she was demoted, and was soon fired. The company has denied the allegations and said that its actions were warranted.

With so few facts on the table, it's hard to glean many lessons from this situation -- except perhaps that silence is golden. From an employer's perspective, it's always a good idea to limit the number of people who are privvy to information that cannot legally be considered when making employment decisions. If the decision maker doesn't know the protected information, whether it's that the employee has a disability, has complained of sexual harassment, or is pregnant, it's more difficult to prove discrimination or retaliation. And from an employee's perspective, limiting disclosure also limits the number of people who have an opportunity to act badly.

To learn more about GINA (and 19 other important workplace laws), see The Essential Guide to Federal Employment Laws (Nolo).