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 

The loss of a Senate supermajority has stopped Health Care Reform for the moment.  There are several other proposed employment laws which may also be affected, such as the Family Leave Insurance Act, FMLA Enhancement Act, Domestic Violence Act and the Military Family Leave Act. 

Of course, some of those laws, like the Employee Free Choice Act have been on hold for over a year and were unlikely to have passed in their original form anyway.  Throughout history Congress has passed laws without having a supermajority.  The Democrats continue with one of the largest majorities in history, so any current prediction of a halt to HR legislation may be premature.  Expect a slower process and modifications, but a number of Republicans also back some of the proposals, especially for increased family leaves.   

The Activist Supreme Court is likely to make more changes in employment law.  The current conservative majority on the U.S. Supreme Court seems to be the most "activist" in recent history.  It has made significant changes in interpretation of law, radically changing standards or invalidating parts of laws, often ignoring long-established precedent and congressional intent.  So, it is more difficult to predict what the law or employer liability will be, with several key employment cases on the 2010 docket.  

LITIGATION 

The Legal Update includes new developments and matters of interest throughout the United States.  Be aware that our various federal circuit courts reach somewhat differing conclusions.  So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction.  Some courts lead the way; others lag behind.  The Legal Update lets you see the overall trends and compare them with your jurisdiction.  Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana). 

Case of the Month 

"She should have called our bluff" was not good defense.  An airline manager noticed and reported a series of improper pay practices which violated company policy, and also seemed to be selectively applied to benefit only male employees.  In most instances, her supervisor allegedly told her to "ignore" the violations, "look the other way" and not to report or cooperate with any corporate investigation.  Nonetheless, she reported the violations, and the corporate investigations resulted in directions for her supervisor to correct the violations.  The relationship between she and the supervisor deteriorated during this period.  After the manager raised a concern over gender pay inequity, the supervisor allegedly informed her that she could no longer be trusted in a leadership position.  He then gave her a choice:  resign or take a demotion to a part-time, non-management job across the country.  The manager, unable to move due to her family situation, resigned.  She then sued for sex discrimination and retaliation under Title VII. 

 The company defended the case by claiming the plaintiff had "voluntarily resigned" and could not claim a constructive discharge.  The defense claimed that she should not have believed the supervisor had the authority to do the transfer and she should have called the company's bluff instead of resigning.  Then, if she had actually been fired, she would have had a case. 

The court disagreed.  It found the supervisor had apparent authority, and the manager was put in a "no real choice" adverse situation.  It found a valid case for retaliation.  Barone v. United Airlines, Inc. (10th Cir., 2009).  [Before one critiques the defendant for the "should have called our bluff" position, be aware that the courts have accepted and validated this defense in a number of cases, especially in the 1st Circuit.  Plaintiff attorneys often advise clients to get fired rather than accept an offer (or ultimatum) to resign, because the firing makes a clear case (plus increases the emotional distress damages.)] 

Electronic Security and Privacy 

Security firm not liable for Internet abuse regarding employees of client.  The Wisconsin Court of Appeals refused to impose strict liability for improper actions by a security guard.  A private security firm was contracted to provide security services for another company.  One of the security guards had access to photos used to create ID badges.  He copied the photos of 30 female company employees, altered them in a sexual way and posted them on Internet pornography sites he had created.  The guard was fired.  The employees whose pictures were posted sued the security firm for negligent supervision and emotional distress. 

 The court considered evidence that the security company had given training to its employees on proper process, sexual harassment and computer security.  Further, the client company owned the computer system and had informed the security firm that its own IT department would monitor the guard shack computer for any misuses.  Therefore, the court found the security firm had taken proper precautions, and had taken swift corrective action once the issue was discovered.  The proper actions meant it was not negligent in supervising the guard.  The security company could not be found negligent in supervising the computer system, since the client had retained control over that function.  Maypark v. Securitas Security Services USA (Wis. Ct. App., 2009). 

Discrimination

Religion 

Airline settles Sabbath case.  Mesaba Airlines has agreed to reinstate and pay several customer service employees who were denied schedule accommodations for either Christian or Jewish Sabbath observations.  The company policy prohibited voluntary swapping of shifts during the probationary period -- preventing the new employees from trading shifts in order to attend church or not work during their Sabbath observation.  EEOC v. Mesaba Airlines (D. Minnesota, 2009). 

Sex 

Outback pays $19 million to settle glass ceiling case.  EEOC v. Outback Steakhouse (D. Colorado, 2009) has ended with a $19 million settlement of allegations that female employees at corporate-owned (as opposed to local franchised) restaurants were denied access to management jobs and opportunities leading to management.  All women who worked at corporate-owned restaurants for three or more years from 2002 to present may apply to share in the settlement.  Outback will also hire a Special Human Resource Executive to address non-discrimination and compliance with the settlement.  In the settlement, Outback denied any discrimination. 

$1.07 million for failure to prevent assault.  An African American female employee made several complaints of racial and sexual harassment from a White male co-worker.  His verbal racial and sexual comments became more overt over three months and culminated in a physical assault, rendering her permanently unable to work.  During this time, supervisors took no action.  The court found "a shocking lack of interest," citing evidence that in one instance a supervisor commented "maybe you should give him some, then maybe he would leave you alone."  The company's defense that it had a harassment policy and took prompt action after the assault was of no value.  EEOC and Freeman v. Whirlpool Corp. (M.D. Tennessee, 2009). 

Race 

Good training and quick action is key to solving harassment.  A supervisor engaged in a campaign of harassing an African American employee.  This included repeated verbal racial slurs, offensive texting and telling racial jokes.  The employee eventually used the anti-harassment policy to complain. The company took prompt action to investigate, disciplined the supervisor and granted the employee's request for transfer.  The employee then filed suit under Title VII and 42 U.S. Code 1981 alleging that the company had not done enough.  The court ruled in favor of the company based on the facts that there was a clear anti-harassment policy, the company had provided anti-harassment/diversity training, the company took quick action to investigate, discipline and stop the conduct.  An employer is not required to take action which fully pleases the complainant.  Rather, it is required to take reasonable action to remedy the situation.  In this case, the company did so.  Griffin v. Harrisburg Property Services, Inc. (M.D. Pennsylvania, 2009). 

$1.26 million settlement.  A restaurant has settled a racial harassment charge agreeing to pay a group of African American employees $1.25 million for alleged racial comments, managers imitating stereotypical black accents and manners, and discrimination in scheduling and promotional opportunities.  The restaurant chain denied discrimination, emphasized that the alleged acts occurred at only one of its locations, and that it has a national policy and program for non-discrimination.  EEOC v. GMRI, Inc., d/b/a Bahama Breeze (N.D. Ohio, 2009).  [This is reminiscent of the January 2010 Legal Update case of EEOC v. United Parcel Service (2nd Cir., 2009) in which one local office's failure to follow the company's anti-discrimination practices resulted in a nationwide EEOC investigation of all branches.] 

Disability 

Employer has burden of proof on essential functions.  In defending a discrimination case, the employer cannot just state which functions are essential to the job.  It must present solid evidence to prove the point.  In Tejeda v. Conagra Foods (9th Cir., 2009), the company could not show that climbing ladders and stairs actually occurred often enough or were crucial to accomplishment of a manufacturing position.  So, it's "essential functions" defense for terminating a person who had suffered permanent leg injuries was insufficient.   

Battle of the "reasonables."  An employee with a migraine condition sued when her employer refused her requested accommodation of moving to another city and working from home.  Her own physician stated that some changes to her office environment and a work schedule modification could adequately accommodate the condition.  The employer offered the office environmental changes, schedule modification and allowed her to work from home part of the time (part of the schedule modification).  However, the employee insisted that her proposed accommodation was "more reasonable."  She proceeded to move to the other city and was discharged.  The court dismissed the case.  It noted that the ADA and the Rehabilitation Act require a reasonable accommodation, not the employee's preferred accommodation.  The employee's focus on the "more reasonableness" of her proposal was misplaced.  She presented no evidence that her doctor's recommendations were not workable, and the employer was entirely reasonable in selecting to follow the doctor's advice and the accommodation which best fit its operational needs.  Porter v. Environmental Protection Agency (D. DC, 2009). 

Disagreement does not warrant refusal.  A librarian with both cardiac and orthopedic conditions was accommodated by leaves of absence for treatment when he could not perform the duties of his position.  At the end of the leave, the employer requested information to verify the employee's current ability to perform job activities and information on any restrictions.  The employer scheduled a medical fitness evaluation.  The employee did not go to the evaluation and instead filed an EEOC complaint objecting to the evaluation as discrimination.  He then refused to attend a meeting to discuss return to work and the employer's continuing request for medical verification of his work ability.  The meeting notice gave warning that failure to attend could result in termination.  The employer fired him for these attendance violations.  He filed a retaliation claim.  The court ruled for the employer.  It had a reasonable basis for seeking information.  The employee had a right to disagree and file complaints but not a right to refuse to obey valid orders.  The ADA does not immunize one from discipline for insubordination.  Manthos v. Jefferson Parish (5th Cir., 2005).

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