OFCCP Audits Down, But Recoveries Up, January 31, 2006
The OFCCP (Office of Federal Contract Compliance Programs) audits federal contractors to insure that they are complying with affirmative action and non-discrimination requirements. While the agency's audits were reduced in 2005, it recovered $45.2 million for alleged victims of employment discrimination, a 31 percent increase over the previous year. The agency intends to increase the number of audits in 2006, employing the targeting methods used in 2005.
Participation Does Not Bar Harassment Claim, January 30, 2006
A federal court in New York has ruled that a female employee can proceed with her sexual harassment claim even though she engaged in some of the behavior she now claims was offensive. The court stated: "Indeed, it is one thing to tolerate, or even engage in, the boorish behavior of one's co-workers; it is wholly another thing to become the butt of such behavior, especially where she is the only female involved." Pellier v. British Airways, Plc., No. 02-CV- 4195 (EDNY, January 18, 2006).
Remember. There is always the risk that an employee will allege that his or her participation in "workplace hijinks" was not voluntary. If your workplace seems to have too much sexual banter, you might want to consider taking steps to tone it down or confirm that all the participants are, in fact, willing participants.
The Labor Department Does Not Measure The Distance Between Worksites “As The Crow Flies.”, January 26, 2006
A construction site manager in Fernwood, Mississippi thought the distance between two points was a straight line, but he found out the Department of Labor (“DOL”) has the authority to say otherwise. The Family and Medical Leave Act (“FMLA”) does not cover an employee at a worksite with fewer than 50 employees, unless his or her employer has 50 employees within 75 miles of that worksite. The FMLA itself does not specify how to measure the 75 mile distance. According to the DOL, which filled the gap in statutory language by regulation, 75 miles is measured in road miles by the shortest route unless there is no available surface transportation between the sites (29 C.F.R. § 825.111(b)).
PCE Constructors, Inc., (“PCE”) which is headquartered in Baton Rouge, Louisiana, hired Larry Bellum to manage a construction site in Fernwood, Mississippi. The straight line distance between Baton Rouge and Fernwood is approximately 68 miles. PCE employed 14 people at its Baton Rouge headquarters and 41 people at the Fernwood construction site.
In December 2005, Bellum took leave for heart surgery, and he was allegedly told a job would be waiting for him when he returned. In early March 2001, Bellum visited his worksite and was told there was no work for him because the project had been completed. Bellum alleged he had been replaced by another employee, and he filed a lawsuit under the FMLA.
The courts concluded Bellum was not covered by the FMLA, because he was employed at a worksite with less than 50 employees, and PCE did not have 50 employees within 75 miles of the Fernwood worksite. The driving distance between Baton Rouge and Fernwood on public roads is approximately 88 miles. Bellum argued the distance between Baton Rouge and Fernwood is only 68 miles “as the crow flies,” which is well within the 75 mile requirement. Bellum also argued the DOL regulation is contrary to Congressional intent, unnecessarily complicated, and will lead to changing results as new routes are constantly being constructed. The U.S. Court of Appeals for the Fifth Circuit determined the DOL’s regulation is not arbitrary, capricious, or manifestly contrary to the FMLA and therefore is entitled to deference. The Supreme Court recently declined to review this ruling, affirming the notion that MapQuest is a vital tool for Human Resources Managers.
The Wheels On The Bus Go Round And Round, January 20, 2006
A Teamster-represented bus driver in Baltimore was terminated when he reported to work at about 1:30 p.m., before his scheduled 2:15 p.m. shift, smelling like beer. When he was confronted, the driver admitted he had a beer "at lunch." He was fired because federal law and Company policy forbid drinking any alcohol for at least 4 hours before driving public transportation. Pretty cut and dried, you might think.
At arbitration, the union presented two creative, if preposterous, arguments: (1) the driver never said that it was an alcoholic beer, and the Company never tested him – it was non-alcoholic beer; and (2) "lunch" is an undefined term – he ate lunch before 10:15 a.m. That made sense to Arbitrator Earle Hockenberry who put the driver back to work with full back pay. I was tempted to add commentary, but this one stands on its own.
Don't Ask About Age, January 16, 2006
Maybe the safest way to hire employees is to have a lawyer conduct the job interview. Or so it must seem to Clear Channel Broadcasting, which is facing an expensive jury trial because of two questions asked by a Program Director trying to hire a producer for a radio show.
Rona Danziger, the Program Director, needed to hire a producer for the “Jamie & Brady” morning show, which had a talk-sports format. The station’s target demographic was males age 25 to 44. The show’s hosts were males aged 31 and 32. Danziger considered eight candidates for the producer job, including William Plegue, the eventual plaintiff, who was 46 years old.
In his job interview, Plegue was unable (according to Clear Channel) to describe how he would create topics that would entertain the target demographic group. He showed no interest in pop culture, no ability to take sports topics and spin them into interesting topics or parodies, and no ability to meld pop culture with sports. He also showed no familiarity with the station’s morning show personalities. On this basis, the station rejected Plegue in favor of a 24-year-old who displayed more promise.
Plegue sued, alleging age discrimination. The basis for the suit was two age-related questions (really one question phrased in two ways) asked by Danziger during the interview: “Do you think you would have problems working with younger hosts?” and “If you were to get this job, you’d be working with two younger hosts. Would the age difference be a problem?”
Those might seem like logical questions to ask, since a producer out of touch with either the target demographic or the on-air talent could make the program sink like a stone in the ratings. But logic has little to do with discrimination law. A federal judge said the case must go to the jury, because a reasonable person could find that age was “a motivating factor” in the decision not to hire. That is, the questions could be taken to imply that Plegue was too old for the job, and that's illegal.
Plegue v. Clear Channel Broadcasting, 97 FEP Cases (BNA) 23 (E.D. Mich., Nov. 22, 2005).
Racist Hiring Amongst the Tribes, January 16, 2006
Since 1934, the federal Bureau of Indian Affairs has pursued a racist hiring policy pursuant to statutory authorization from Congress in the Indian Reorganization Act of 1934. That Act established a “preference” for hiring persons of Indian blood. Moreover, when Congress passed the Civil Rights Act of 1964, it decided that Indian tribes should not be considered “employers” and thus exempted them from federal liability for racist hiring policies.
More recently, a federal court held that the Aroostook Band of Micmacs, a Maine tribe, is exempt from both federal and state regulation of its employment practices. Indian tribes possess a qualified sovereignty (removable at the will of Congress) that gives them control over their own employment practices that non-Indian citizens and corporations don’t have. This means that the Indian tribe was entitled to a federal court order insulating it from complaints of discrimination under Title VII or Maine employment discrimination laws.
Aroostook Band of Micmacs v. Ryan, 97 FEP Cases (BNA) 8 (D. Me., Dec. 5, 2005).
Make Sure the Harassment Ends, January 16, 2006
New Jersey’s Law Against Discrimination provides a remedy to students who are subjected to peer harassment, based on the same standards used in punishing employers for harassment by fellow employees on the job.
L.W., a male student perceived to be homosexual, was subjected to a series of disgusting episodes of harassment by fellow students. The ugliness began in fourth grade and continued into high school. The school’s administration responded to each report of peer abuse, administering progressive discipline to the offenders. But this reactive policy was not effective, and the abuse continued. The school system was liable for damages (just as an employer would be liable under similar circumstances).
A cash award of $50,000 to the boy was affirmed on appeal. However, his mother was not entitled to keep the $10,000 awarded to her, because the law did not allow damages to parents.
The lesson: When combating workplace harassment, make sure you’re not just going through the motions. Make sure the harassment ends.
L.W. v. Toms River Regional Schools, 97 FEP Cases (BNA) 74 (N.J. App., Dec. 7, 2005).
Employee Who Sued For Discriminatory Termination Not Entitled To Severance Pay, January 16, 2006
John B. Patterson hedged his bets against his former employer and lost. The Montana resident was terminated by his employer, Air Touch Communications, after his position was eliminated in 2000. At the time of his termination, Air Touch offered Patterson over $23,000 in severance pay, conditioned upon his execution of a severance agreement. As part of the agreement, Patterson was required to release Air Touch and all of its affiliates, including Verizon Wireless ("Verizon"), of all claims arising out of his employment.
Patterson refused to sign the severance agreement and brought an employment discrimination claim against Verizon a few weeks later. The Montana Human Rights Bureau investigated his claim and later dismissed it as meritless. Apparently realizing he could not collect from his former employer on his unfounded discrimination claim, Patterson pulled out the year-old severance agreement, signed it, and sent it to Verizon.
Verizon refused to accept the signed agreement or to pay Patterson the severance pay it had originally offered him a year earlier, particularly in light of the fact that Patterson had sued the company for employment-related discrimination. Patterson sued Verizon in state court, seeking payment of the severance benefits, and the trial court granted summary judgment in favor of the company. The appellate court affirmed, holding that Patterson's refusal to sign the release of claims included in the severance agreement – not to mention his subsequent lawsuit – was tantamount to a rejection of the company's offer of severance. The court ruled that, at best, his so-called "acceptance" of the severance offer a year later was a counteroffer, which Verizon unequivocally rejected. Thus, there was no binding contract between the parties, and the company had no obligation to pay Patterson. Patterson v. Verizon Wireless, No. 04-637 (Mont. Sup. Ct. 2005).
Employer Has Duty to Investigate Employee's Computer Use, January 16, 2006
by Clifton R. Gray
In a decision causing quite a stir in the employment law community, the Superior Court of New Jersey, Appellate Division, has held that an employer had a legal duty to investigate the internet usage of one of its employees where it knew or should have known that the employee was accessing child pornography on one of the employer's computers. Doe v. XYC Corporation, A.2d (N.J. Super. A.D., filed Dec. 27, 2005).
At issue was the fact that the employee, an accountant, was suspected of using his workstation computer to access pornographic websites after XYC's computer log reports noted such activity. After this improper activity was reported to the XYC's Director of Network and PC Services, the Director chose not to report the matter or discuss it with the employee, citing a company policy that "prohibited monitoring of or reporting the Internet activities of employees." However, co-workers noticed that the employee acted strangely whenever they had sight of his computer screen, "shielding his computer screen or quickly minimizing it so that other could not see what he was doing." When a supervisor checked the employee's computer when he had left his station during a lunch break, it was discovered that the employee had been visiting various pornographic sites. When the employee was approached by his supervisor about these findings, he told his supervisor that he would stop. He didn't.
A few months after his warning, the employee used his work computer to upload and send out pornographic pictures of his minor stepdaughter. Because of these illegal actions, the employee was arrested and his work computer searched. The search uncovered numerous visits to child pornography websites and a multitude of e-mails discussing child pornography.
The plaintiff, wife of the employee and mother of the young girl in the pictures, filed suit against XYC, alleging that the company "knew or should have known that Employee was using its computer and internet at his workstation to view and download child pornography and to interact with child pornography websites . . . XYC Corp. had a duty to report Employee to the proper authorities . . . [and] XYC Corp. negligently, carelessly, with reckless indifference and or intentionally breached its aforesaid duty." The trial court granted summary judgment for XYC, stating that the corporation acted as a reasonably prudent corporation would have acted under the circumstances.
On appeal, however, the appellate court reversed, holding that XYC had the ability and right to monitor the employee's internet activities and that it knew or should have known about the employee's use of his office computer to access child pornography. The court also held that, because XYC did or should have known about this conduct, it had a duty to either report the employee's actions to law enforcement or to fire him.
The holding in this case is already being roundly criticized by the legal community, with some going so far as to suggest that it imposes strict liability on employers. While that has yet to be seen (the holding does appear to hinge on the fact that the employee was viewing child pornography, an obviously illegal activity), it will no doubt create unease with employers because it places them in a precarious situation: disregard privacy rights and face a possible lawsuit when you inquire as to an employee's internet activity or disregard employees' use of employer computers/internet and face a possible lawsuit such as the one here. In such cases, an employer would best be served by a policy limiting employees internet access to sites that are related to the employer's business.
No "Affinity" for Religion at GM, January 16, 2006
by Clifton R. Gray
When examining a claim of discrimination based on Title VII, the first thing one must ask is whether the alleged discriminatory action was taken "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In a recent opinion by the United States Court of Appeals for the Seventh Circuit, the Court held that it was not discrimination for General Motors to deny one of its employees the right to establish a Christian employees group under GM's Affinity Group program. Moranski v. General Motors Corp., F.3d (7th Cir. Dec. 29, 2005).
John Moranski worked as a desktop computing architect for GM in Indianapolis, Indiana. In late 2002, Moranski submitted to GM an application for recognition of the "GM Christian Employee Network" as one of GM's Affinity Groups. GM established the Affinity Group program in 1999 in an effort "to make diverse constituencies feel more welcomed and valued at GM, remove barriers to productivity for all employees, and increase market share and customer enthusiasm in diverse market segments." According to the guidelines of the Affinity Program, the groups "are typically created around an aspect of common social identity that influences how others see them at GM." The Affinity Groups are able to use GM facilities for group activities and also receive funds from GM to support their missions. Currently, GM recognizes nine Affinity Groups: People with Disabilities, the General Motors African Ancestry Network, GM Plus (for gay and lesbian persons), the North American Women's Advisory Counsel, the GM Hispanic Initiative Team, the GM Asian Indian Affinity Group, the GM Chinese Affinity Group, the GM Mid-East/South-East Asian Affinity Group, and the Veterans Affinity Group.
The Guidelines explicitly list that GM will not approve for Affinity Group status groups that "promote or advocate particular religious or political positions." When GM denied Moranski's application for his Christian group, he filed a complaint with the EEOC and received a right to sue letter. In the federal court, Moranski alleged that GM's denial of his proposed Affinity Group was illegal discrimination based on religion. The federal district court granted GM's motion to dismiss the Title VII claim.
On appeal to the Seventh Circuit, the appellate court noted that several large companies with affinity programs do in fact recognize ones with religious purposes (e.g., Intel and Texas Instruments). However, the court stated that GM's action was not in violation of Title VII because "the allegations in Moranski's complaint make clear that General Motors would have taken the same action had he possessed a different religious position . . . [s]imply stated, General Motor's Affinity Group policy treats all religious positions alike – it excludes them all from serving as the basis of a company-recognized Affinity Group. The company's decision to treat all religious positions alike in its Affinity Group program does not constitute impermissible 'discrimination' under Title VII."
The lesson for employers to be taken from this case is that it is okay to treat certain protected categories under Title VII differently, so long as the different treatment is not discriminatory. Here, if GM had allowed a Muslim, Hindu, or Jewish group to form an Affinity Group to promote its religion but did not allow Moranski his Christian Affinity Group, this would constitute religious discrimination in violation of Title VII. Because GM did not allow any of its Affinity Groups to be based on religious identity, however, there was no violation of Title VII.
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