Category: Recruitment

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The Difference Between Sexual Discrimination and Sexual Favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, it's morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

  • Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
  • Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
  • Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

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Your ‘No Loitering’ Policy for Employees Could Be Unlawful

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims.

In EYM King of Michigan, a National Labor Relations Board administrative law judge considered the following policy, implemented by a Burger King franchise:

Loitering and soliciting either inside or outside on Company premises is strictly prohibited. You should arrive some minutes before your entry hour and leave the as soon as you finish your shift. Employees are not authorized to remain in the restaurant after work. If you are not working or eating in a store, your conduct may be construed as loitering. If you are off-duty and return to the store to speak with employees who are working, your conduct may be considered loitering. Former employees who return to the store to speak with employees who are working are loitering. This policy is designed to prevent the disruption of company business due to unnecessary interaction with non-working employees or non-employees. Employees who violate this policy may be subject to discipline, up to and including termination.

The ALJ concluded that this policy unlawfully restricted employees’ rights to engage in protected concerted activity because it impeded employees’ ability to gather, and, by implication, discuss wages, hours, and other terms and conditions of employment. The judge also was not persuaded by the employer’s professed “safety” concerns for its employees:

Respondent’s justification for its rules is that its restaurants are located in high-crime areas.  To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights….

Respondent’s professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious. The company has made no showing as to how this rule enhances safety. In this regard, it does not prohibit customers from eating food purchased at its restaurants while sitting in their cars in the restaurant parking lot. Moreover, people are just as likely to be the victims of violent crime at Respondent’s drive thru windows as anywhere else on the exterior of the restaurant.

No employment policy that could potentially impact employees’ ability to discuss work is safe from the NLRB’s scrutiny. If you have not had a labor and employment lawyer review your handbook and other policies, you are doing your business a severe disservice, and taking a huge risk, in this hyperactive regulatory environment.

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When the Same Actor Hires and Fires, Discrimination is Unlikely

It seems to be common sense that if the decision maker accused of a discriminatory adverse action is also the individual responsible for earlier hiring that same person, it is unlikely that a discriminatory reason motivated the latter decision. After all, if I discriminate against people of a certain race (or gender, age, religion, etc.), why would I hire them in the first place? Wouldn’t I just not hire them to keep them out of my organization?

Courts refer to this as the “same-actor inference” — inferring a lack of discrimination from the fact that the same individual both hired and fired the employee.

A recent decision from the Southern District of Ohio applied this inference in a case in which a fast-food manager claimed discrimination after the “same actor” hired him, and, shortly thereafter, fired him:

Even Plaintiff’s theory of this case does not suggest race discrimination: it defies logic that a Caucasian manager would hire him in an attempt to replace a minority manager and then “turn the tables” four months later and fire him for being Caucasian.

This is not to say that the same actor can never discriminate. After all, Chevy Chase hired Richard Pryor after lobbing the worst kind of racial bombs across the interview desk. Indeed, in the 6th Circuit, this “same actor” inference is insufficient, in and of itself, to entitle an employer to summary judgment. But, if you are faced with a case in which the same actor is accused of firing after hiring, absent other compelling evidence of discriminatory intent, you will have a great defense to the discrimination claim.

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The Wrong Way to Engage in the ADA Interactive Process

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an Equal Employment Opportunity Commission charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.

These are the facts of the latest Americans with Disabilities Act lawsuit filed by the EEOC. If the facts, as the EEOC alleges, are true, this case seems like a slam dunk for the agency.

Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations proposed or requested by the employee. The employee might not be entitled to a requested or preferred accommodation, but he or she is entitled to a good-faith exploration of their possibility.

In this case, it appears that the employer did the exact opposite of what the ADA requires of it, and, to make matters worse, blamed the employee for the breakdown of the interactive process when later firing her on the heals of her EEOC charge. 

This employer is going to learn an expensive lesson about the reasonable accommodation process. Perhaps you can learn something from its apparent mistakes.

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Don’t Try to Regulate Employee Off-Duty Alcohol Consumption

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

Twenty-nine states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy — no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the Equal Employment Opportunity Commission took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.
 
The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the Americans with Disabilities Act protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.
 
Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 
 
Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.
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Federal Judge Dismisses EEOC Severance Agreement Lawsuit Against CVS

The Chicago Tribune reported that U.S. District Judge John Darrah has granted CVS Pharmacy’s motion to dismiss a lawsuit filed by the Equal Employment Opportunity Commission, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).
 
When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.
 
The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.
 
In the meantime, this is not the end of this issue. It is possible, if not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.
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Evaluating a Job Applicant’s Background History

When making hiring decisions, employers routinely examine a job applicant’s background. Using background history, especially criminal information, requires extra diligence by human resources professionals, especially where the information is used to deny the applicant a job.

Use of background information can disproportionately affect people of various racial and ethnic backgrounds, along with gender. This could expose an employer to liability under Title VII of the Civil Rights Act of 1964. Also, the Fair Credit Reporting Act requires strict compliance when hiring outside vendors to conduct background checks. 

Below are tips employers should consider when developing an effective hiring process:

1. Define in Writing Job Duties and Expectations. By having written position descriptions, employers can better justify using background information, especially criminal history, to reject an applicant from consideration.

2. Evaluate an Applicant’s Criminal History Under the “Green Factors.”The U.S. Equal Employment Opportunity Commission advises employers who use criminal background history to consider the “Green factors” (so named after a court case) to determine whether the negative history would affect people conducting their job duties. This includes the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.

3. Do Not Use Mere Arrests as a Basis for Rejecting an Applicant. The criminal justice system presumes that individuals are innocent until proven guilty. Using arrests with no other information can disproportionately affect people of different races and ethnic backgrounds. The EEOC is especially skeptical of employers that reject qualified candidates solely because of past arrests. In many states, using arrests as a basis to deny employment is illegal.

 4. Do Not Ask About Criminal Histories That Have Been Expunged. Except in rare circumstances, employers are prohibited from asking about sealed or expunged criminal records. Employers should make sure that applicants are informed that they need not provide this information.

5. Preserve Employment Hiring Records for at Least Two Years. The EEOC advises that employers preserve employment hiring records for at least two years after the records were made, or the personnel action was taken, whichever comes later.

6. Keep Up With the Changing Legal Landscape Regarding Background Checks. The law on employment hiring practices changes frequently. As an example of new law, the Illinois Legislature recently passed a bill making it illegal for employers of 15 or more people to even inquire about criminal history until after an applicant has been deemed qualified. House Bill 5701 was sent to the governor in June and was awaiting his signature as of this writing. If it becomes law, many Illinois employers may have to modify their hiring and recruitment practices.

Daniel R. Saeedi is an associate at the law firm Taft, Stettinius & Hollister. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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When Retaliation Stands the Test of Time

Often when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse is true — if a long period of time elapses between the protected activity and the adverse action. Can an employer save itself from a retaliation claim simply by waiting it out? This was the question the court faced in Malin v. Hospira, Inc. (7th Cir. 8/7/14).

Deborah Malin worked in the IT department of the Abbott Laboratories’s hospital product division (spun off to a new company, Hospira, in 2006). In July 2003, she informed her direct boss, Bob Balogh, that she was going to complain to HR about sexual harassment by her indirect supervisor, Satish Shah, who reported to Mike Carlin. Before she could complain to HR, Balogh told her that Carlin told him to do everything in his power to stop Malin from going to HR. Malin ignored the stop sign and lodged her harassment complaint with HR.

Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions but received none of them. On June 14, 2006, the management team (including Carlin, then the CIO) met to discuss new roles for current IT employees. Five days later, Malin took emergency Family and Medical Leave Act leave. Several weeks later, the IT department announced its reorganization, which again resulted in Malin being passed over for a promotion.

Among other claims, Malin claimed that when Hospira executed its 2006 reorganization, it retaliated against her for the 2003 harassment complaint. The court concluded that the intervening three-year gap between the harassment complaint and the decision not to promote Malin was insufficient to defeat her retaliation claim:

[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation…. Rather, if the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support her claim….

The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira. Malin’s immediate supervisors repeatedly told her that she would be an excellent fit for newly-available positions at higher salary grades and that they would recommend that she be promoted into them. Nevertheless, Malin did not receive any promotions at Hospira between 2003 and 2006…. These incidents are circumstantial evidence that Carlin remembered Malin’s complaint about Shah and acted to prevent her from being promoted at Hospira long after the complaint was made.

This case serves as a solid reminder that an employer cannot hold a grudge against an employee who engaged in protected activity, with the hope that the passage of time will permit later retaliation. If an employee can connect the dots between the protected activity and the adverse action, the employer faces risk, no matter how much time has passed.

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Customer Preference and Race Discrimination: When the Customer Isn’t Right

The Equal Employment Opportunity Commission has sued a Chicago auto parts retailer for race discrimination after it fired an African-American store manager. The store, an AutoZone, was located in a heavily Hispanic Chicago neighborhood. The company decided to eliminate or limit the number of non-Hispanic employees working at the store, believing that its Hispanic customers preferred to interact with Hispanic employees. When the manager refused to report to another store, the EEOC claims he was fired.

John Hendrickson, the EEOC’s regional attorney in Chicago, explains in a news release why the agency filed suit.

Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable. When the employer is a major national brand and a leader in its industry, it’s even worse. Everyone must understand that supposed customer preference is no excuse for discrimination—it’s still illegal, and the EEOC will step in to challenge it.

Hendrickson is correct. As one federal court explains, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” Avoid the trap of acting on a mistaken belief that customers will only deal with like-skinned employees. Simply, the customer can never choose the race of the person working for you. The customer might be right about a lot things, but discrimination is not one of them.

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Executive Order Bans LGBT Discrimination by the Federal Contractors and Government

Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation and gender identity discrimination. Executive Order 11478, which already banned sexual orientation discrimination by the federal government, now also includes a prohibition against gender identity discrimination. The provisions affecting federal employees takes effect immediately; those impacting federal contractors will take effect within 90 days, after the Secretary of Labor implements regulations.

Currently, only 18 states prohibit employment discrimination based on sexual orientation and gender identity. These amendments will extend these protections to 28 million federal employees and employees of federal contractors. Thus, if you are a company with federal contracts operating in one of the 32 states without these protections, this executive order will apply to you.
 
It is time for employers to stop invidious discrimination against Lesbian, Gay, Bisexual and Transgender employees. According to the White House, 91% of Fortune 500 already prohibit discrimination based on sexual orientation, and 61% already prohibit discrimination based on gender identity. Yet, according to President Obama, “In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense..… I firmly believe that it’s time to address this injustice for every American.” 
 
I agree. It’s incomprehensible and unjustifiable for an employer to discriminate on the basis of sexual orientation and gender identity. It’s antithetical to what this country stands for — government of the people, by the people, for the people, and justice for all (no matter with whom they happen to go to bed at night). Eventually, Congress will act, pass the Employment Non-Discrimination Act, and make LGBT discrimination a thing of the past. Until then, do right by your employees. Enact policies prohibiting this type of discrimination in your workplace. Send a message that you are an employer of inclusion, and not exclusion.