March2010_Legal

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.

Franken Amendment Forbids Arbitration of Title VII Issues for Defense Contractors and Subcontractors. The new DOD Appropriation Act for 2010 contains a provision introduced by Sen. Al Franken which restricts the use of mandatory arbitration for Title VII discrimination claims or any other claim involving sexual harassment or assault. The provision applies to employees and independent contractors (who are not eligible to file under Title VII but can file other forms of civil suits.) The Amendment is in reaction to a series of U.S. Supreme Court decisions such as Penor Plaza LLC v. Pyett (S.Ct., 2007) which ruled that an arbitration claim can eliminate the right for a claim to be made in court under Title VII or other cause of action.

Agriculture industry objects to new immigration rules: claims Americans won't work that hard. Employer groups are objecting to new H-2A guest worker Visa changes which may restrict foreign workers and increase agriculture wages. The administration believes this will provide more jobs for U.S. citizens. The California Grape and Fruit Growers League and the American Farm Bureau Federation has claimed that the rules will hurt agriculture, resulting in a worker shortage. They claim that U.S. workers do not take hard harvesting work, even at $15 per hour, and they plan to challenge the rules in court. [This shows the complexities of immigration reform. Conservative politicians call for restricting immigration; yet when the administration takes action which might result in a restriction, conservative business groups strongly protest and threatens to sue to have it stopped.]

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).

7th Circuit adopts Supreme Court's age discrimination standard in ADA Case. Last year, the U.S. Supreme Court decided Gross v. FBL Financial Services and overturned the standard burden of proof, requiring a greater degree of proof by the plaintiff under the Age Discrimination in Employment Act (ADEA). The court rejected the "mixed motive" cause of action, and required proof that age was the sole cause of any adverse employment decisions. The court distinguished age cases from Title VII (race, sex, national origin, religion). The language of Title VII specifically allows for mixed motive and other forms of proof.

Now the 7th Circuit Federal Court of Appeals (Wisconsin, Illinois, Indiana) has reread the Americans With Disabilities Act. It finds that language is more similar to the Age Discrimination Act than Title VII. Thus, in Serwatka v. Rockwell Automation, Inc. (7th Cir., 2010), it held that plaintiffs also have the greater burden of proof under the ADA to show strong direct and sole causation, instead of disability being one probable factor in a decision.

This development may have limited consequences. As with several of this Supreme Court's unusually "activist" decisions, the Gross case has generated Congressional action to introduce bills to amend the ADEA (and now the ADA) and several other laws to bring it in line with Title VII. A problem with an activist majority on the court is that radical decisions often result in Congressional reactions which then create new standards and added liabilities for employers.

Strict policy does not save employer when supervisor ignores duty. An employee was killed in an accident when he was thrown out of a vehicle. He was not wearing a seatbelt. The company had a strict policy requiring the wearing of seatbelts. However, OSHA found the policy did not constitute a defense to liability in this case. Investigation showed that the seatbelt had been inoperable for some months. The supervisor was supposed to do a daily inspection. Instead, the supervisor just checked off the inspection form without actually looking at the seatbelt for over six months. Though a non-management employee may have a duty to not use and to report defective equipment, any such blame to the deceased employee was vastly overshadowed by the supervisor's dereliction of inspection. The company was found to have known or should have clearly known of the safety issue. OSHA assessed the maximum civil penalty for the violation. In re Burford Tree, Inc. (2010).

Court rejects "political correctness" standard. "[I]t would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation." This was part of the court's ruling in dismissing the age discrimination case in Hyland v. American International Group (3rd Cir., 2010). A 56-year-old corporate legal counsel's job was eliminated. A 47-year-old attorney, at a higher level, was retained. The plaintiff's main evidence was that once, ten months before the layoff, a manager had called him "the old man of the operation." The court found this stray remark too isolated and unrelated to any tangible decision to constitute valid evidence. It is virtually impossible for people at work not to make occasional reference to age, gender, physical condition, etc. Adopting a "purity" standard would make every birthday card or get well card or comment a future potential age or disability discrimination issue.

Auto dealer settles sex and age case for $1.5 million. A Colorado auto dealership and the EEOC have settled a case alleging sexual harassment of female employees and age-related discharge of older salesmen. The dealership will pay $1.5 million to five female former employees and five older male former employees. It will also post new anti-discrimination policies, provide EEO training to all employees, and make regular compliance reports to the EEOC. While settling the case, the company denied any discrimination. The EEOC issued a statement praising the company for its prompt efforts to seriously address issues once the suit had been brought. EEOC v. Arapahoe Motors, Inc. (D. Colorado, 2010).

Pre-existing environment defense fails; continuing cubicle comments constitute harassment. A predominantly male sales force's pervasive general vulgarity and frequent gross sexual comments created a sexually-harassing hostile environment. While no comments were ever made directly to the lone saleswoman, the cubicle arrangement made all comments between the salesmen clearly audible throughout the area and impossible to avoid being subjected to. The employer tried to defend the case by claiming the sales floor had always been this way, and the female knew this when she took the job. The court rejected this argument. All workplaces change; once a person objects to illegal activity, the employer must institute changes in its environment. Reeves v. C. H. Robinson Worldwide, Inc. (11th Cir., 2010).

Contractor can sue for sexual harassment under New Jersey law. New Jersey is among a number of states with anti-discrimination laws which extend beyond employment. In JT's Tire Service v. United Rentals, Inc. (New Jersey Superior Ct. of App., 2010), a quid pro quo sexual harassment cause of action by a contractor was found valid. The plaintiff alleged that United Rentals would not do business with her company because of her refusal to have a sexual relationship with a United Rentals branch manager. This allegedly cost JT's Tire Service $29,000 per month in lost business.

Ellen DeGeneres not right for the Midwest. A female hotel desk clerk was fired because she did not meet "the pretty Midwestern girl look" desired by a manager. The manager testified that the clerk had an "Ellen DeGeneres kind of look," was "tomboyish" because she wore loosely-fitting, "man-looking" shirts and slacks, short cut hair and avoided make-up. Sex stereotyping is covered as sex discrimination under Title VII, and the court found there was sufficient evidence to believe the clerk was improperly fired due to not meeting the manager's stereotype of what a woman should or should not be. Lewis v. Heartland Inns of America (8th Cir., 2010).

Perceived as gay. Sexual stereotyping under Title VII and state laws include not fitting the stereotype of being a "proper male." Under New York state laws it includes being "perceived as gay." A man was fired from his public relations job for a New York men's clothing manufacturer because the management perceived him to be homosexual. The evidence showed overt emails to him from the owner stating that he was being let go because of "company image . . . models and other people have questions about your sexuality and my company can't afford to be attached to any gay [expletive]. How does it look for a men's clothing line to have a fruitcake as the spokesperson, not my company." The plaintiff denies that he is homosexual, but the court found clear evidence that he was fired due to being "perceived" as gay and certified the case to proceed to trial. Padmore v. L.C. Play, Inc. (S.D. New York, 2010).

Restroom use is an essential function of job. A wheelchair-bound disabled veteran was hired as a telemarketer. He then discovered the company restrooms were not wheelchair accessible. He requested that a restroom be made accessible for a wheelchair, but this request was denied. He was told he would have to find another restroom in some other building. This resulted in his having to go home when he needed a restroom. The employee quit, claiming constructive discharge, and sued under the ADA. The company defended by claiming that restroom use is not in any job description and was not an essential function of the job, thus requiring no accommodation. The court disagreed. Forcing an employee to leave work every time a restroom is needed interferes with the essential function of attendance and ability to work one's schedule. Lerman v. Xentel (S.D. Florida, 2009).

Company's sales training at hotel is a public accommodation. The court has validated the Title III ADA suit of independent contractor sales representatives with hearing impairments. The company held sales meetings in a hotel conference center. It did not provide the auxiliary technology or services necessary for the hearing impaired, and they could not effectively participate. The court ruled that once a company rents meeting space and "takes control" of that meeting room, it becomes a "public accommodation" as to the program and must meet the Title III public accessibility requirements. Jensen v. United First Financial (D. Utah, 2010).

Open position not considered. The ADA provides that when a disability renders one unable to do a job and there is no viable accommodation, the employee should be offered any vacant job at an equal or lesser level for which they are qualified and they can do. In Lane v. Bremner Food Group, Inc. (W.D. Kentucky, 2010), the evidence showed the employee was discharged due to inability to do his job, but was not considered for other vacancies he may have been able to perform.

Man fired for reporting his brother's office affair. The New Jersey Supreme Court validated a retaliation case under the state's discrimination law. Mr. Rou and his wife were employed by the same company. The VP supervising them was Mr. Rou's brother. The VP was allegedly having extramarital affairs with two women in the office. When some incriminating evidence of the affairs surfaced, the VP tried to get Mr. Rou to take the blame, asking him to claim he was the focus of the relationship (shades of John Edwards). Mrs. Rou was understandably upset. The VP then admitted to her that it was he, not her husband, who was the culprit. Mr. and Mrs. Rou then reported the VP's affair and their concerns about impropriety and sexual harassment to the company owners. Both Mr. and Mrs. Rou were then fired, and their health insurance was later cancelled. Rou was reluctant to sue his brother and waited a number of months. The court found he had waited too long to challenge the discharges, but the later health insurance cancellation retaliation was still within the statute of limitations. Rou v. LAFE (New Jersey S.Ct., 2010)

FMLA request during discharge meeting is not effective. A technician with a long history of performance warnings and disciplinary actions failed to meet the last chance performance improvement standards. During the meeting to terminate his employment, the technician made a request for FMLA leave. It was denied because he was being fired. He then sued, alleging (among other things) both denial of FMLA and retaliatory discharge for having requested FMLA. The court dismissed the case. He was unable to prove a serious medical condition, and the decision to discharge had already been made; thus, it could not be in retaliation for his request. Williams v. AT&T, Inc. (5th Cir., 2010).