Ugly Discrimination, August 29, 2011
I sat reading the Sunday New York Times yesterday (without electricity thanks to Hurricane Irene), and came upon an Op Ed piece by an economics professor at the University of Texas, Austin, titled "Ugly? You May Have a Case." Professor Daniel Hamermesh's view is that it's time ugly people got their rights. While admittedly a "radical solution," he asks "why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?" (It appears the Professor isn't aware the accepted term is now "disabled," not handicapped).
The concept of protection for the ugly is not new. Reading the editorial made me recall a Note from the Harvard Law Review in 1987, called Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance, Vol. 100, No. 8 (June 1987), pp. 2035-52. And since then cosmetic disfigurement is recognized as protected under the Americans with Disabilities Act. "Personal appearance" is now a protected category in some jurisdictions. But "ugly"? Who makes that call?
I have wondered for years about the test case: The plaintiff takes the stand. No testimony. The jury awards $1 million dollars. Bingo. That's a "poster-child" case. But the Professor has an even "better" idea: class actions. No kidding. He writes that while pursuing a discrimination lawsuit costs a lot of money, "many attorneys would be willing to organize classes of plaintiffs to overcome these [litigation] costs, just as they do now in racial-discrimination and other lawsuits."
The good professor suggests that we could figure out who the "truly ugly" are - maybe the "worst-looking 1 or 2 percent of the population" and single them out for protection. Imagine that "good news/bad news" scenario. But with an estimated $230,000 less in lifetime earnings if you're ugly, the mind reels at where this might lead.
Burlington Definition of Retaliation Appropriate Under the FMLA, August 24, 2011
The Second Circuit has joined five other Circuits in holding that the correct definition of a "materially adverse employment action" in FMLA retaliation cases is the one used by Supreme Court in its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White. The Burlington definition includes employer actions that are likely to dissuade reasonable workers from exercising their rights under anti-discrimination laws. Millea v. Metro-North Railroad Co., 2011 U.S. App. LEXIS 16354 (2d Cir. August 8, 2011). The other courts that have adopted this standard in FMLA cases are Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008);; Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006; McArdle v. Dell Prods., L.P., 293 F. App'x 331, 337 (5th Cir. 2008) (unpublished opinion) (per curiam); DiCampli v. Korman Cmtys., 257 F. App'x 497, 500-01 (3d Cir. 2007) (unpublished opinion); and Csicsmann v. Sallada, 211 F. App'x 163, 167-68 (4th Cir. 2006) (unpublished opinion) (per curiam).
Anti-Business Mural? No Problem in Maryland, August 22, 2011
This reported in today's Maryland Daily Record: A local union from Portland, Maine is bringing to Maryland a copy of a mural that hung in the Maine Department of Labor. It seems the mural was removed by order of Maine's Governor in March because it was deemed "anti-business." A Teamster's Local immediately found the best place to display the anti-business mural: Maryland. But then, you might have guessed that. It can be seen at the VIS Arts Gallery in Rockville.
Maryland Court of Appeals Continues to Limit Wrongful Discharge Cases, August 22, 2011
The common law doctrine of "employment at will" permits either an employer or employee to terminate the employment relationship at any time or for any reason. Maryland courts are reluctant to diminish employers' decision-making discretion, but the a tort claim of "wrongful discharge" has been recognized in limited circumstances. The seminal case in Maryland is Adler v. Am. Standard Corp., 291 Md. 31 (1981). In Adler, an employee filed a wrongful discharge action alleging that he was terminated for reporting misuse of corporate funds and falsification of company financial documents to internal company officials.
Since recognizing the tort of wrongful discharge in Adler, Maryland courts have refined its requirements and scope on a case by case basis. Recently, in Parks v. Alpharma, Inc., __ Md. __, 2011 Md. LEXIS 449 (July 19, 2011), the Court of Appeals affirmed the trial court's dismissal of the plaintiff's complaint, holding that she had not stated a sufficiently clear public policy as the basis of her wrongful discharge claim.
Parks worked out of Alpharma's Baltimore office, marketing prescription drugs throughout Maryland from 2001 until July of 2006, when she was fired. Parks's complaint alleged that her termination was "in retaliation for her complaints about Alpharma's illegal marketing activities." The articulated public policy basis for her wrongful discharge claim was the Maryland Consumer Protection Act (MCPA), Md. Comm. Law. Art § 13-303 and the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45 which prohibit "unfair or deceptive" acts or trade practices.
The Circuit Court for Baltimore City granted Alpharma's motion to dismiss, holding that (like Adler) Parks had not complained of her concerns outside of Alpharma, but had only done so internally. The Court of Appeals took the case on its own motion, bypassing the Court of Special Appeals and affirming dismissal of the complaint - but on different grounds.
The Court of Appeals held that neither the MCPA or the FTCA provided a sufficient basis of public policy on which Parks could rest her allegations. Parks's effort to rely on the FTC's regulations also failed to sway the Court. In a concurring opinion, Judge Adkins agreed that Parks's complaint should be dismissed but noted that "the majority leaves in a state of doubt the law regarding whether a whistleblower action requires external reporting. We resolved this issue in favor of internal reporting in Lark v. Montgomery Hospice, Inc., [414 Md. 215 (2010)] . . . ."
Judge Adkins's first concern should get employers' attention. Traditionally, "internal only" complaints have not been fodder for a wrongful discharge claim. The Lark case was brought under Maryland's Health Care Worker Whistleblower Protection Act, which contained specific provisions about notice to the employer. But the Court did reject the argument that Lark was required to report the wrongful actions to external authorities to state a claim. It remains to be seen whether the Court would apply this reasoning beyond the healthcare setting.
Fourth Circuit Holds Job Applicant Cannot Sue Prospective Employer for FLSA Retaliation, August 22, 2011
Affirming dismissal of an FLSA suit against SAIC, the Fourth Circuit has held that a job applicant who alleged the company withdrew a conditional offer of employment upon learning that she had sued a former employer for wage and hour violations cannot pursue an FLSA retaliation claim against the prospective employer because the Act only permits "employees" to file retaliation claims against their current or former employer. Dellinger v. SAIC, No. 10-1499 (4th Cir. August 12, 2011).
The FLSA's anti-retaliation provision, 29 U.S.C. § 215(a)(3), prohibits "discrimination" against "any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding" under the Act. The court rejected Dellinger's argument that "employee" in Section 215(a)(3) should be interpreted to include job applicants, the court said the statutory term "does not exist in a vacuum" but rather is defined elsewhere in the FLSA as "any individual employed by an employer." The DOL and EEOC had filed amicus briefs supporting Dellinger.
Dissenting, Judge King suggested that the majority ignored the logic of the Supreme Court's decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), where the Court held that the term "employee" as defined in Title VII enabled a former employee to sue a former employer for retaliation.
But writing for the majority, Judge Niemeyer noted that Robinson involved a former employee's retaliation claim against his former employer, not a retaliation claim by an applicant who never worked for the company. To the extent Robinson is relevant, said Judge Niemeyer, the Fourth Circuit has ruled that the FLSA's anti-retaliation clause covers employees suing their former employers.
"The issue here," said Judge Niemeyer, "is whether the FLSA applies to persons who are not yet employees and who have never worked for the employer. Because Robinson deals only with former employees, it does not speak to the issue in this case."
Undocumented Workers Not Eligible for Back Pay Under NLRA, August 12, 2011
In Mezonos Maven Bakery Inc., 357 N.L.R.B. No 47 (Aug. 9, 2011), a unanimous three-member panel held that the National Labor Relations Act and Supreme Court precedent in Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002) “forecloses us from awarding back pay to undocumented workers” even where the employer was violating the Immigration Reform and Control Act by knowingly employing undocumented workers. The workers in this case were fired in 2003 after they complained about a supervisor. They filed unfair labor practice charges and eventually the parties settled. In accordance with the settlement, the NLRB issued a stipulation that ordered the employer to offer reinstatement and backpay for the employees. The employer later argued that he could do neither as a result of the Hoffman decision. In a concurrence voicing a more employee-friendly viewpoint, two members of the NLRB agreed that this case was governed by the Hoffman decision, but disagreed that the case served to advance the interest of the NLRA or IRCA. In an attempt to undermine the precedential power of this decision, the concurrence stated: “We would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”
U.S. Postal Service Is Choking to Death, Union Looks to Finish the Job, August 12, 2011
The U.S. Postal Service’s financial woes have been fodder for the newspapers lately. The USPS had stated that it is facing the equivalent of Chapter 11 Bankruptcy. In an effort to divert this catastrophe, the Postal Service has asked Congress for legislative approval of a reduction-in-force outside of the collective bargaining process. The USPS hopes to cut about 120,000 positions. The current collective bargaining restrictions make such a reduction-in-force impossible. Of course, instead of sympathizing with the plight of one of nation’s Postal Service, or having any perspective of the crisis facing the nation, the American Postal Workers have derided this as a ploy to undermine their collective bargaining rights. According to the APWU, “crushing postal workers and slashing service will not solve the Postal Service’s financial crisis.” The AWPU has undertaken its own legislative efforts by backing legislation that would permit the USPS to apply pension overpayments to its retiree healthcare prefunding obligation, which, it asserts, is the main source of the USPS’s financial problems. Of course, the financial problems facing the USPS couldn’t be the result of a bloat workforce, government bureaucracy, or antiquated systems, or unworkable collective bargaining agreements. Instead, the Union wants the USPS to rob Peter to pay Paul.
No Bathroom Break = No Problem, August 12, 2011
On July 26, 2011, the Sixth Circuit held that an employer did not take an adverse employment action against a black employee when it denied her request to use the bathroom, the employee soiled herself, and the embarrassment from the incident caused her to miss time from work. In Worthy v. Materials Processing, the employee, Worthy, inspected fuel tanks that passed before her on an assembly line. The company had a rule that, to keep things moving on the assembly line, the employees had to have someone relieve them before they could leave the line for bathroom breaks. One night, Worthy asked her supervisor to use the restroom because she had a medical condition that made it urgent that she use the restroom. The supervisor told her there was no one to replace her. Not wanting to be fired for leaving the line, Worthy continued to work until she soiled herself. She filed a suit for, among other things, Title VII discrimination. The district court granted summary judgment, and the Sixth Circuit affirmed, holding that “adverse employment actions that are of the magnitude of a termination of employment, a demotion, a decrease in salary, or a material loss of benefits.” Even though the denial of a bathroom break made her job “significantly more difficult,” the Sixth Circuit held that it did not rise to the level of an adverse employment action.
It’s Ok to Threaten Your Supervisor, August 5, 2011
This week, a construction industry employer learned that it was illegal for it to fire two union-represented employees who had told a supervisor “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves” after the supervisor disciplined a group of employees for exceeding a 15-minute break limit. The employer terminated the employees for violating its zero tolerance policy against workplace violence. The National Labor Relations Board, however, decided that the workers’ statements were protected activity. The NLRB disregarded the statements as threats of violence, choosing instead to call them “figures of speech.” The federal appeals court reviewing the NLRB decision agreed with the NLRB, and considered these statements to be a spontaneous reaction voicing resistance to a policy and not actual threats. To quote the dissenting judge who wrote about her concern over reinstating workers who challenge employers with threatening language: “So much for industrial peace.” Kiewit Power Constructors Co. v. NLRB, No. 10-1289 (D.C. Cir. Aug. 3, 2011).
OSHA’s Whistleblower Protection Program Revamping, August 4, 2011
The Government Accountability Office’s 2010 report did not grade OSHA’s whistleblower protection program too well. As a result, OSHA will be revamping the program. Details of the new and improved program include a brand new Whistleblower Investigations Manual, coming soon, and which promises to offer more detailed guidance to ensure consistency and quality of investigations. Here’s the part of the new manual description that makes me very uncomfortable: “the new manual will include a requirement that investigators make ‘every attempt’ to interview the complainant.” This obviously begs the question… was OSHA not making every attempt to interview, as part of its investigation into alleged whistleblower claims, the person actually filing the claim in the first place. Thank goodness for government accountability.
Computers Are Ageless? August 2, 2011
The 11th Circuit Court of Appeals recently held that a fired employee whose duties were assumed by a new computer program could not establish that he was replaced by a younger employee for purposes of his claim under the Age Discrimination in Employment Act. Mr. Gortemoller worked for a furniture company and the bulk of his duties related to researching, designing and merchandising new products for the company. After the employee was fired, the majority of his duties were assumed by a web-based computer program that permitted sales people to communicate directly with designers about products that are needed. The only duty not delegated to the computer was traveling overseas to look at products, which duty another younger employee assumed. This younger employee was already doing this task before Mr. Gortemoller was fired. And while this younger employee was also tasked with “overseeing” the new computerized process, he was not actually assigned to perform Mr. Gortemoller’s former duties. Therefore, Mr. Gortemoller’s age claim was tossed out.
Playing “Race Card” Wins Jury Trial on Retaliation Claim, August 1, 2011
An African-American factory employee won the right to take his Title VII retaliation claim to a jury because his manager had accused him of “playing the race card.” The employee “almost habitually” complained about poor treatment from a white co-worker, as well of racial discrimination in training and promotion decisions that he was denied. In one particular meeting where the employee was being questioned about why he did not complete a supervisor-assigned task (and for which he was ultimately fired), a supervisor accused the employee of playing the race card and told him to find other employment if he did not like working there. The employee denied ever mentioning race during this particular meeting. Even though the employee had not complained about race issues in the days prior to his termination, he had made complaints earlier in the year. The Seventh Circuit concluded that his earlier complaints, when coupled with the “race card” comment and the employee’s denial that he cited race during the disciplinary meeting, established a jury question as to whether the employee’s historical complaints about racial discrimination at the job was the real reason for his discharge. Burnell v. Gates Rubber Co., No. 10-3490, 7th Cir. July 27, 2011.
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