October 2009 Developments
Five Ways to Improve an Employer’s Position when Defending Against Charge of Discrimination
It will come as no surprise to many employers who have seen it first-hand: when the economy gets tough, employees get going down to the EEOC, FCHR or local anti-discrimination agency. The numbers bear this out as we could be in for a record year in the sheer number of charges being filed. This column offers five strategies to improve the employer’s chances of prevailing at the administrative level in a discrimination case. These tips are based on recent cases we have handled and the comments we have received from agency investigators.
1. Document fully all employment decisions. This is the number one concern of investigators that we hear. They like to see documentation and, if it is missing, it is a red flag that the employer may not be able to overcome. This includes not only terminations and layoffs, but also promotions, leave determinations, and job reassignments. Performance evaluations should be honest. Don’t sugar-coat or avoid weak areas that need improvement as this may come back to haunt you. The need to do more paperwork is probably not what you would like to hear, but a well-reasoned decision can avoid an adverse determination and thousands of dollars in legal fees and that makes it worth your while to do it.
2. Communicate your decision to the employee. We have heard a number of complaints that an employee—sometimes one who has worked for the facility for years—has been terminated (or suffered some other adverse employment action) via e-mail, voicemail or text message, or some other method that is viewed as inadequate and impersonal. It is best to communicate employment decisions directly face-to-face with the employee (there should be another management employee in attendance as a witness) and then document it. Don’t take the human out of human relations. If a face-to-face meeting is not possible, at least send a letter explaining the reason for the decision and you might mention in it why a face-to-face meeting was not held.
3. Review your Progressive Discipline Policy. This policy sounds good on paper but can be difficult to administer in practice and can “lock” an employer into a course of action that limits flexibility and ultimately make it appear in some cases that employees in similar circumstances are treated differently. If you are going to have a progressive discipline policy, it must be written broadly enough to allow the employer to use the full range of discipline available depending on the circumstances of the offense. The facts of individual cases matter and each should be documented sufficiently to allow the employer to speak with authority months or years later when an issue may arise.
4. Keep Up to Date. Labor and employment law changes more rapidly than many other areas as new laws or regulations are added or revised, making it important for the employer to keep up. Clearly, an employee handbook that was written in the 1990s is not going to be compliant and should be revisited and updated. Also, whenever a handbook is revised, you must obtain a receipt from each employee acknowledging receipt of the new handbook. Otherwise, an employee who later alleges harassment may be able to claim that he or she was unaware of the procedures for reporting a complaint. Are your employment posters up to date? This is one of the things an investigator always will check when they come to your facility. Are you maintaining all employment records (don’t forget that this includes not only payroll, personnel file and leave records, but also applications, work schedules, and documents pertaining to reorganization or downsizing) for a minimum of one year after making them or after the affected employee leaves (and until final disposition if they file a claim)? Ask legal counsel if it is okay to shred those old documents before you do it.
5. Involve Legal Counsel Early in the Process. Everyone wants to cut costs and save money these days and it can be very tempting to forego legal counsel when you receive a charge. However, an employer is better served by getting legal counsel before you do anything else. You should not try to respond on your own, even if you think the charge is ridiculous on its face. All it takes sometimes is one slip of the lips in an unrehearsed candid moment on the phone with an investigator or a written response to a charge that is not as clear or as succinct as it should be. Once tolled, you can’t unring the bell. Experienced legal counsel is trained to navigate through the shark-infested water that is labor and employment law today. Again, cutting corners can be very costly in the long run.
Guidance For Employers On The H1N1 (Swine) Flu
The U.S. Department of Health and Human Services (HHS) and the Centers for Disease Control (CDC), in cooperation with other governmental agencies such as OSHA, have issued guidance for employers to help prevent the spread of the flu and to address likely staffing shortages in the workplace in light of a potential outbreak. The discussion here will focus on planning and education, and environmental controls and strategies that can be employed. The full text of the Guidance and more complete information is available on the Government’s pandemic flu website at http://pandemicflu.gov (scroll down to and click on “Business Planning” on left hand column of home page).
The Guidance suggests that information about transmission prevention techniques (e.g., hand hygiene, “cover your cough,” etc.) be provided to employees. Printed material and posters are available from the Government website and, if a significant portion of the employer’s workforce reads a language other than English, the employer should consider providing information in that other language. Along with this, the employer should implement a number of environmental controls that are available for preventing the spread of the flu. These can include supplying tissues and hand sanitizers throughout the workplace, more frequent cleaning of heavily used areas or equipment (e.g., reception, bathrooms and breakroom area, telephones and computer keyboards, doorknobs or anything that is touched by many hands), minimizing the number non-essential mass meetings, and encouraging employees to get the flu vaccination.
Not all of the suggestions in the Guidance will work for all employers. One recommendation is that persons maintain a distance of at least six feet from co-workers to help stop transmission, but this obviously is not obtainable for those who share crowded work spaces. Moreover, social distancing techniques such as encouraging the use of telecommuting and staggered shifts may not be helpful for many employers.
Perhaps the most significant—and potentially troublesome--suggestion proposed by the Guidance is that employers should institute liberal, non-punitive sick leave policies so that employees will not fear losing their jobs if they call off because they or a member of their household has the flu. It further states that employers should encourage employees who have flu symptoms to stay home (without the need for getting a doctor’s note since doctors will be too busy treating patients with the flu to write notes) or, if they are already at work, to go home and not return until at least 24 hours after fever has subsided. While this may help to prevent the spread of flu, it also may play havoc with an employer’s ability to run its business.
Some employees with the flu may be eligible for leave under the Family and Medical Leave Act if they otherwise meet the requirements. Other employees (e.g., those with chronic long-term health conditions which put them at elevated risk of contracting flu) may need to be provided with an accommodation such as a mask or face shield, gown or respirator if they meet ADA eligibility criteria. Many other employees who are generally healthy may not fall under the protection of these statutes when they or their family member falls ill with the flu. These latter situations will pose the most challenging issues for employers in balancing flu prevention with the potential for leave abuse if sick policies are relaxed.
In the event of mass absenteeism or a local outbreak of the flu (school closings or the shutdown of mass transportation also could dramatically affect the ability of employees to report to work), the employer should have a plan to ensure continued operation with likely staffing and supply shortages. Such a plan would include contingency planning with key vendors, labor suppliers, and local partners similar to what employers may already have in place for hurricane and other disaster preparedness. Cross-training also might be useful as a long-term strategy in this regard.
Religious accommodation dispute over nose ring
A federal court in the Middle District of Florida decided a case involving a dispute between an employee and her employer over whether the employee should be allowed to wear a nose ring at work. The local employer had a policy (imposed by its parent company) that prohibited the wearing of all facial jewelry, but the plaintiff claimed that wearing the nose ring was a bona fide religious practice and she asked to be excused from the Company policy. The employer refused, but did offer two other alternatives: 1) a flesh colored band-aid to cover up the nose ring; or 2) that plaintiff could be excused from work whenever the parent company inspector came around (the local employer had no real objection to plaintiff wearing the nose ring but did not want to get in trouble with the parent company by allowing violation of the policy). Plaintiff ultimately refused these options and was terminated after she reported to work wearing the nose ring. The EEOC brought suit on her behalf, arguing that the employer failed to accommodate her religious needs and, therefore, violated federal law.
On the employer’s motion for summary judgment, the court began by noting the obligation of an employer to reasonably accommodate an employee’s religion by eliminating the conflict between a religious practice and an employment requirement, if such conflict could be accomplished without undue hardship to the employer’s business. The court found disputed issues of fact on every material relevant issue. With respect to whether the wearing of the nose ring was “religious” in nature, the employer had no evidence that it was (it had asked for a note from plaintiff’s minister or a page from a religious text evidencing the requirement to wear the nose ring, but plaintiff only provided a note from herself and her mother) and the plaintiff claimed protection based on her Nuwaubian beliefs. This dispute could not be resolved at the summary judgment stage. On the issue of accommodation, it was disputed whether the flesh colored band-aid was effective or whether it would “abnegate” plaintiff’s religious need to wear the nose ring. The second option (allowing plaintiff leave to avoid contact with the inspector) was not reasonable, held the court, because it encouraged subterfuge and fraud.
The court then moved on to the undue hardship issue and could not find in the employer’s favor on that issue either. First, the local employer could not claim undue hardship because it did not really care whether plaintiff wore the nose ring. The only thing the local employer cared about was avoiding detection by the parent company’s inspector and being found in violation of the policy prohibiting facial jewelry. There also was no evidence (as has been found in other cases that ruled in favor of employers) of a legitimate hardship such as loss of ability to protect the company’s public image, interference with its product or service, or a legitimate safety or security concern. Indeed, the parent company appeared amenable to allowing a deviation from its rule in this case if plaintiff had only provided the requested note from her minister or the page of religious text. In sum, the court was unable to conclude—as a matter of law on a summary judgment motion—that the employer had a legitimate defense to its refusal to allow plaintiff to wear the nose ring at work. As a result, a trial would be necessary to decide the issue. EEOC v. Papin Enterprises, Inc., 2009 WL 961108, 105 FEP Cases 1804 (M.D. Fla. 2009).
Epilogue. The case did go to trial and the employer prevailed because the plaintiff was unable to prove that wearing the nose ring was a bona fide religious practice, so the employer was not required to accommodate plaintiff’s desire to wear it at work.
Supreme Court ruling on throwing out results of promotional exam
At the end of its 2008-09 Term, the United States Supreme Court ruled that the City of New Haven, Connecticut violated Title VII (the Court did not reach the constitutional issue raised by the parties) when it threw out the results of a promotional exam for firefighters because the results showed that too few minority candidates passed the exam. This led a group of largely white candidates to bring a lawsuit challenging the City’s action and they ultimately prevailed in the Supreme Court (they lost at the district and appellate court levels). It was undisputed that the City had spent a lot of time and money to come up with a fair, unbiased test but the challenge came when the results of the exam led to a statistically disparate impact on minorities (well under the 80% ordinarily used as the benchmark to gauge disparate impact). The Court opined that it was required to balance the statutory demand that race not be used to make employment decisions against the statutory requirement that facially neutral policies not result in a racially disparate impact. The Court struck this balance by creating a new standard for employers who want to change a decision because of an apparent disparate impact. It cannot do so, held the Court, without “a strong basis in evidence” to believe that it has acted illegally. The precise boundary was, of course, not delineated in the Court’s decision but it did say that the “fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotion.”
The Court’s decision offers little solace for employers, who will continue to be caught in the middle and who must tread as lightly as possible to avoid using race intentionally to remedy perceived racial disparities while at the same time acting to prevent racial disparities from occurring in the first place. Ricci v. DeStefano, 106 FEP Cases 929, 129 S.Ct. 2658 (2009).