The WIB Legal Line is our new regular feature. Employment laws are confusing. The WIB LEGAL LINE updates members on developments that could impact your business. Robert E. Gregg is a partner in the Boardman Law Firm of Madison and has long been associated with WIB. Want to read even more employment law legal updates? Visit the WIB website, WWW.WIBIZ.ORG and click on LEGAL LINE.

LEGISLATION AND ADMINISTRATIVE ACTION

Worksource Wisconsin launches employers’ disability resource Web site. The State of Wisconsin’s new service will provide employers with comprehensive information and advice on issues regarding employment of people with disabilities. The state has traditionally focused on services to people with disabilities. Worksource Wisconsin is an employer-oriented program to help businesses understand the often complex practical and legal issues under the ADA and state disability laws. The program also provides effective and practical technical assistance and accessible, ongoing support for employers to successfully employ and accommodate people with disabilities. The site is www.worksourcewi.com. There is also a toll-free resource line for Wisconsin employers (866-460-9602).

Third time a charm? Genetic discrimination law clears Senate Committee. The Senate Health, Education, Labor & Pension Committee again voted to submit to the Senate a bill prohibiting use of genetic information in health insurance and employment. This is the third time. The full Senate approved the bill in 2004 and 2005, but it died due to lack of action by the House. This year may be different. The Senate bill had Republican sponsorship, and there is now much bipartisan support in the House. The proposed law would be similar to Title VII in its procedures and penalties.

LITIGATION

Retaliation - Public Policy Discharge

New “hostile environment” standard: constructive discharge can be based on repeated requests to violate the law. An exception to Employment at Will in many states is “discharge against public policy.” In Wisconsin, this means one may not be fired for refusing to violate an established law or regulation. In LaBarbera-Haines v. Boardwalk Investments LLC (Wis. Ct. App. Dist. IV, 2007), the plaintiff alleges that she was ordered to fudge documents sent to the City Assessor and create fraudulent over-billings to the company’s tenants. These acts could violate several state criminal statutes. The plaintiff was not fired for her refusal; she was not even treated badly. However, she claims that she continued to receive, and have to refuse, directions to do more of the same. So she resigned to avoid these conditions she found intolerable. A lower court dismissed the case for failing to state a claim. The Appeals Court reversed, finding that for public policy matters a constructive discharge did not require overtly mean treatment. An “intolerable condition” could be repeatedly having to refuse to carry out illegal directions. [This decision only allows the case to continue; it does not establish any facts to prove whether or not the plaintiff’s allegations are true.]

Discrimination

Standards

Honest errors are not discrimination—even “non-honest” errors. “Title VII does not prohibit an employment decision that is mistaken, wrong or untrue.” There must be evidence that the protected classification, “illegal bias,” was involved. Even lies are not illegal as long as they are not discriminatory. Pyles v. City of Philadelphia (E.D. Pa., 2006). [For clearer information on this standard, request the article When is Honesty the Best Policy?, Boardman Law Firm at rgregg@boardmanlawfirm.com.]

Disability

100% policy violates ADA. Employers can expect Fitness for Duty when a worker returns from Workers Compensation, FMLA or other medical leaves. However, a 100% healed or “fully healed” policy violates federal and state disability laws. If individuals are able to accomplish the essential functions of the job, they are entitled to come back to work. The 100% policy ignores the law’s requirements for individual assessment and reasonable accommodation. Wright v. Middle Tennessee Electric (M.D. Tenn., Dec. 2006).

“Unusual process” results in award to forklift driver who was regarded as disabled. An experienced forklift driver applied for a job. He self-identified as “handicapped” (arthritis, carpel tunnel and a heart condition). However, the job required little physical exertion and nothing related to his conditions. He initially met positive response. Then when his “disabled” condition was allegedly learned, he was rejected. The company’s defense to the case was “unusual.” It claimed that he had failed the preemployment physical, but that was not true. It then could not identify who made the hiring decision. It then switched its explanation for not hiring the plaintiff. There was ample evidence of pretext to justify a $180,000 verdict for the plaintiff. Chalifant v. Titan Distribution, Inc. (8th Cir., 2007).

Intranet evidence results in $2.5 million verdict. Some managers seem addicted to unwise computer use. An employee’s repeated requests for accommodation of major depression were refused. The interactive process was not implemented. A crucial factor in the verdict was managers’ derogatory emails about the employee, including emails between managers agreeing to “keep quiet” about a transfer (which would have accommodated the employee) so that it could be filled “before he found out” about the opening. Hudson v. Dept. of Homeland Security (S.D. Fla., Dec. 2006).

Does Internet addiction due to a PTSD qualify as a disability? An employee was fired for repeatedly violating policy by visiting Internet chat rooms on the company computer. He then filed an ADA case claiming that his military service Post-traumatic Stress Disorder manifested itself in “Internet addiction” and that he should have been granted more clemency before discharge. He alleges that the company treats other disabilities such as alcoholism and drug dependency more leniently. PTSD is a recognized disability, and there have been cases of PTSD alcoholism or drug dependency combinations (both of which can independently qualify as disabilities). This is the first case on PTSD with an “Internet addiction” manifestation. Internet addiction is not recognized as a formal psychological disorder. Also, the ADA does not require an employer to ignore repeated on-the-job violations of policy even though caused by a disability. So the plaintiff in this case may have an uphill battle. The allegation of more favorable treatment of other sorts of addictions may be a stronger point if the court accepts “Internet addiction” as a covered ADA issue. Summary judgment motions have been filed and a decision will be made in the next few months. Pacenza v. IBM (S.D. New York).

Condition is not a perceived disability. The plaintiff alleged that he was chosen for layoff because the employer knew of his epilepsy diagnosis and perceived him as disabled. The employer knew of the epilepsy because it had once granted an FMLA leave due to the condition. The court dismissed the case due to lack of proof that the employer “perceived the plaintiff as substantially limited” in life activities or the ability to work. A diagnosed condition may or may not be a disability, depending upon its effects. Mere knowledge of a condition does not create a “perception of disabled.” Further, a condition can qualify as a serious medical condition for FMLA without being a disability, and the mere granting of FMLA does not mean the employer then “perceives a disability.” Robinson v. Lockheed Martin Corp. (3rd Cir., 2007).

Race

Reprimand is not an “adverse action.” An African American employee claimed that he received a harsh written reprimand for excess personal computer use, while the use by White employees was not monitored. He suffered no pay effects nor any other tangible harm. The court dismissed the case for failure to show a sufficiently tangible adverse action. Not everything that upsets an employee is actionable. Even unfair and discriminatory acts are not actionable unless they rise to a level of tangible employment actions; otherwise, the courts become clogged with petty issues and will be unable to effectively address matters of serious harm. So, written reprimands, poor performance evaluations and a variety of other matters are often not challengeable. Wallace v. Georgia Dept. of Transportation (11th Cir., 2007).

Sex

Racine County responded correctly to harassment complaint. Employees alleged pervasive verbal and physical sexual harassment by a supervisor. They delayed in reporting this to Human Resources, in spite of an anti-harassment policy posted on the bulletin boards in all work sites. When the situation was reported to HR, the county promptly and thoroughly investigated and took disciplinary action toward the supervisor. When the employees sued, the court used the Ellerth/Faragher standard to dismiss. Under Title VII, an employer who has a well-known harassment policy and takes prompt action to address complaints has an effective defense to any suit. Jakson, et al v. County of Racine, WI (7th Cir., 2007). [For more information on this defense, request the article Harassment Policy and Procedure from Boardman Law Firm, at rgregg@boardmanlawfirm.com, or you will find the article at Boardman’s Web site, www.boardmanlawfirm.com as the Article of the Month.]

Tuskegee University wins on same standard. A university employee alleged that she was pressured into having sex with a supervisor out of fear of losing her job. When requesting a transfer, she did not mention any concern about harassment. Then when she finally complained, the university took prompt action to sanction the supervisor and remove her from his authority. The court dismissed the complaint due to the university’s prompt corrective action. Arnold v. Tuskegee University (11th Cir., 2007).

National Origin

U.S. citizens can sue U.S. company for anti-American national origin discrimination they experienced at European subsidiary. The U.S. law has always been convoluted regarding U.S. employees working abroad and what is, and is not, actionable. Fordham v. Agusta Westland (E.D. Pa., 2007) involved U.S. employees sent for job training at the company’s Italian affiliate. They were subjected to discrimination in demeaning conditions and harassed due to an alleged anti-American bias. When they complained about the mistreatment, they were forced to resign. The court found that though the Italian subsidiary was the alleged discriminator, the U.S. company was the employer and could be responsible for the overall situation and the termination.

Sexual Orientation

Gay officer receives $450,000 to settle discrimination case. A municipality has settled a state sexual orientation case. A 17-year veteran police sergeant revealed that he was gay in 2002. His good standing suddenly took a nose dive. When he applied for promotion, the city quickly adopted new criteria that excluded him, but then waived the new criteria for others and promoted them. His spotless record was suddenly tarnished by 14 different misconduct charges which were brought over one non-serious incident. The police department then violated its own rules on investigation and confidentiality, leaking harmful information to the press. Then all 14 charges were eventually dismissed. The officer sued under the New Jersey discrimination law. Len v. Haledon (N.J. Superior Court, 2007).

USERRA

USERRA rules of proof not as great as Title VII. A Reservist was allegedly subjected to anti-military harassment by co-workers and was pressured by management about having to disrupt the schedule to accommodate his military training. He allegedly was often called names like “GI Joe,” “Little Lead Soldier” and “Girl Scout” (in reference to his uniform). He was eventually fired for a violation he alleges was a pretext for anti-military discrimination. The company defended by claiming it had sufficient reason to discharge the plaintiff independent of any anti-military bias, due to his violation of company policies. So even if there may have been some evidence of anti-military bias, it was eliminated by other independent reasons. This would be a good defense under a Title VII discrimination case. However, the court ruled that USERRA suits should be judged under the tougher National Labor Relations Act standard. If military status played any role at all, then there would be a violation of the law no matter how much other independent causation existed for the employer’s actions. Valesyuez-Garcia v. Horizon Lines of P.R., Inc. (1st Cir., 2007).

Wages and Labor Standards

Selfish waitress loses case. A waitress challenged the restaurant’s policy of requiring servers to share tips with the bartenders and bus staff. She wanted the whole tip for herself. It did not seem to be her problem that the others would not get any recognition for their behind-the-scenes contributions to the diner’s experience. (A poorly-mixed drink would probably get her a lower tip, and a perfect drink a better tip. Just think what happens to the tip if the table setter puts out a dirty dish; but “who cares” about the bartender or bus staff?) Since the restaurant was a chain, she filed a class action on behalf of all wait staff. The California court found that mandatory tip sharing did not violate either the State Labor Code or the Unfair Competition Act. As long as the employer does not take any of the tip for the “house,” mandatory tip sharing with others who “contribute” to the customer’s service is valid. Loni v. McCormick & Schmick Restaurant Group (Cal. App., 2007).

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