Welcome Pennsylvania and New Jersey employers.

Settle in and read on for easy-to-navigate, clear and concise summaries of the employment-law landscape in PA and NJ. Plus, we highlight the latest legal trends and changes in the law. You can even improve the way you and your employees conduct business with our featured guest commentary and insights from other management-side employment lawyers and human resources professionals.

This isn't your average blog; this is The Employer Handbook. Read it cover to cover.

August 16, 2013

What could possibly go wrong with a sham workplace investigation?

Magnifying_Glass.gif

Well, if it means that the employee diagnosed with anxiety and depression -- the one who requested a reasonable accommodation to perform her job -- gets fired. Well, then, a lot.

That's basically what happened in this recent federal court case out of Kentucky.

You see, normally, a court won't second guess an employer's decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don't care if she belongs to every protected class on the EEOC's checklist, court's tend not to sympathize with sexual harassers.

But, as the Kentucky court noted, it's a different story when the decision to terminate the alleged sexual harasser -- the one with the disability -- is made before the workplace investigation commences:

The Plaintiff has produced evidence that the Defendant's investigation regarding the sexual-harassment complaint against the Plaintiff was a cursory one...The fact that Smallwood drew up the paperwork necessary to terminate the Plaintiff prior to meeting with her and that she terminated the Plaintiff without further investigation even though the Plaintiff denied making the comment could lead a reasonable juror to conclude that the Defendant did not actually fire the Plaintiff because it found that she sexually harassed a co-employee.

So take it from your old buddy, Eric. If an employees come to you complaining that so-and-so sexually harasser her, please take the complaint seriously. However, don't just assume that the complaint against so-and-so is the gospel. Conduct a fair and impartial investigation to determine whether the complaint has merit.

Image credit: By Dan Pelleg (own work (based on Windows "Webdings" font)) [Public domain], via Wikimedia Commons

August 15, 2013

When it comes to ADA accommodations, reasonable is good enough

Under the Americans with Disabilities Act, an employer must make reasonable accommodation to the known physical or mental limitations of an individual unless the employer can show that doing so how cause it undue hardship.

Generally, an employee will initiate the process by advising her employer that she is disabled and needs an accommodation to perform the essential functions of her job. What then ensues is an interactive dialogue in which both sides work together in good faith to decide on what that accommodation may be.

But here's the rub:

The accommodation need only be reasonable; not the employee's first choice.

patrialmask.jpgHere's an example from a recent decision from the Third Circuit Court of Appeals:

A chemist had a disability that manifested itself when she became exposed to certain solvents. So, the employer offered her a full-mask respirator. It didn't work because she was claustrophobic and it caused her to suffer a panic attack. The employer then offered a partial-mask respirator, which the employee refused without explanation. But, she never suggested that the partial-mask was unreasonable. Instead, she preferred a transfer. Ultimately, she took sick leave and was terminated after she failed to return to work upon exhausting FMLA and her bank of paid time off. So, she sued under the ADA for a failure to accommodation and lost.

Reject the reasonable accommodation at your own risk.

Relying upon an ADA regulation, the Third Circuit reasoned that an individual who rejects a reasonable accommodation "to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified" for the job.

Have a good faith, interactive dialogue.

So, when an employee comes to you requesting an accommodation for a disability, I'm not suggesting that you should wax and twirl your handlebar mustache before offering her an "accommodation." But you don't have to accept her preference either. Instead, truly have an interactive dialogue with the employee to arrive at an accommodation that both sides can live with.

August 14, 2013

A woman sharing topless photos at work prolly isn't an invitation to grope her

sexboard.jpg[Click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click]

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Dear Google User Who Got Five Words Into The Lede And Clicked:

Sorry, this is an employment-law blog. From time to time we have some prurient (look it up) content. Like, this one time, I blogged about a former prostitute who sued for sexual harassment. Sure, I've also discussed Playboy-posing cheerleaders, and a place called the Wild Beaver Saloon. And then there was that post about the strip club. Make that posts (plural).

Hey, did I mention that my blog was once named a top Labor and Employment Law Blog by the ABA Journal?

Anyway, to those who got here looking for topless photos, again, I'm sorry. I cannot accommodate (look it up) you. Instead, what I plan to discuss today is this recent PA federal court decision, in which the court shot down another lame attempt by an employer to assert the "she was asking for it" defense in a sexual harassment case.

(Sorry, the court's opinion has no pictures and I've checked the case docket five times -- you know, to be thorough and stuff. No pix there either).

Everyone here engages in inappropriate workplace behavior.

The facts here are fairly straightforward. The defendants claimed that the plaintiff, a former employee, brought topless photographs of herself and others to the workplace, initiated sexual conduct by sharing those photos, sent sexually explicit text messages, and made sexually suggestive comments to male coworkers. For her part, the plaintiff admitted having shown co-workers a photograph of a topless woman who had participated in a "wet t-shirt contest" at a motorcycle rally known as "Mountainfest," but denied showing those employees inappropriate photos of herself.

(Go ahead. I'll pause while you Google.)

However, the plaintiff denied that she welcomed the subsequent groping and vulgar language that followed from her male co-workers. The defendants did not deny that employees behaved inappropriately. Instead, without citing any supporting case law, they argued that the plaintiff invited this reaction by voluntarily showing her co-workers a photograph of a topless woman.

The "she was asking for it" argument never works in defending a sexual harassment case.

Trust me. It ranks right up there with the "exotic dancer" defense and the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense in a race discrimination case. But some folks have to learn the hard way. And this time was no different, as the court denied the defendants' motion for summary judgment.

Takeaway

When conducting anti-harassment training -- you're doing that, right? -- please emphasize that behavior that your mother wouldn't tolerate is no good for the workplace either. It doesn't matter if the "harasser" didn't mean anything by that ass-grab. It only matters whether the "victim" is offended. And even if it appears that the "victim" is not offended, trust me, he or she will be once that lawsuit is filed. 

August 13, 2013

Paula Deen beats the race-discrimination claims that crushed her

Paula Deen with my dishtowelsSomewhere, I picture the folks at Merriam Webster franticly revising the definition of "Pyrrhic" to cross-reference a stick of butter Paula Deen.

Yesterday at The Employer Handbook, I discussed the EEOC losing a major battle in its war against background checks

Today, it's all about winning the battle, but losing the war. 

A federal court, in this decision, has dismissed race discrimination claims against Ms. Deen and the other defendants. (The remaining non-race-discrimination claims survive).

The court determined that, "at best, Plaintiff is an accidental victim of the alleged racial discrimination." Specifically, it held that the Plaintiff, who is white, lacks standing to assert claims that her fellow African Americans co-workers were discriminated against on the basis of their race. This notwithstanding Plaintiff's allegations that the hostile work environment that Ms. Deen and the other defendants created for black co-workers created rancor in the workplace overall, which detrimentally affected the Plaintiff. To that end, the Court remarked that "workplace harmony is not an interest sought to be protected" under anti-discrimination laws.

So, victory for Ms. Deen on the race claims. But, that sound you hear is not Team Deen popping bottles of champagne.

August 12, 2013

In its war on background checks, the EEOC loses a major early battle

Late last year, in this post, I highlighted the six issues that the United States Equal Employment Commission prioritized in its Strategic Enforcement Plan.  Numero uno is eliminating barriers in recruitment and hiring. 

Even before it released its Strategic Enforcement Plan, earlier in 2012, the EEOC telegraphed that it would closely scrutinize criminal background checks employers run on job applicants to determine whether they may disparately impact minorities.

crimback.jpg

But even before that, in 2009, the EEOC came out guns blazing, when it announced a lawsuit against Freeman (also known as the Freeman Companies), a nationwide convention, exhibition and corporate events marketing company. In it's lawsuit, the EEOC alleged that Freeman unlawfully "rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions."

Well, on Friday, in this opinion, a Maryland federal court dismissed the EEOC's action against Freeman. While the court conceded that "some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII," the EEOC could not meet its burden of "supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice."

And what, you may ask, did the court find so unreliable about the EEOC's expert analysis in this case? Here are a few choice selections from the Court's opinion:

  • The judge noted what "appear to be such a plethora of errors and analytical fallacies" in an EEOC expert's conclusions to render them "completely unreliable, and insufficient to support a finding of disparate impact."

  • He then underscored that the "mind-boggling number of errors" contained in the EEOC expert's database "could alone render his disparate impact conclusions worthless."

  • To add insult to injury, the judge piled on the EEOC expert by noting that he further "managed to introduce fresh errors into his new analysis, including many additional duplicates, material coding errors, and more double-counting."

  • And when the EEOC tried to introduce another report from a second corroborating expert, the judge shot that report down as "likewise unreliable and inadmissible."

  • Finally, the judge turned his attention away from the EEOC's experts, and blasted the EEOC itself for trying to "make a mockery of procedural standards."

But where the EEOC really fell down here was with its failure to isolate a specific employment practice that allegedly caused a disparate impact. That is, Freeman had a variety of background screens in effect. Instead of tackling them individually, the EEOC lumped them all together and claimed that, collectively, they had a disparate impact on minorities. According to the court, what the EEOC should have done is "demonstrate that each particular challenged employment practice causes a disparate impact," unless doing so proves unfeasible, which was not the case here.

The court concluded its opinion by offering a stern warning to the EEOC, which could carry over to other similar actions now pending against other employers:

By bringing actions of this nature, the EEOC has placed many employers in the "Hobson's choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

Let's call a spade a spade: this is a major setback for the EEOC. However, employers must recognize that facially neutral background checks may have a disparate impact on certain protected classes. While the EEOC's "individualized assessment" strikes me as impracticable, I do agree with the EEOC that employers are well served to consider the nature of the position to be filled, as well as whether a background check exclusion is actually job-related and consistent with the needs of the business. Doing so, helps strike a reasonable balance to protect the business, while not excluding viable candidates.

Disclaimer: I am a pro bono mediator for the EEOC.

August 9, 2013

Hiring managers share 10 awesome job pitches, and 10 epic fails!

Fine lineThere's a fine line between genius and insanity. 

    • Voting for this blog for the ABA Journal Blawg100 (today is the last day to nominate blogs, so, please, please, please): genius;

    • Boston Red Sox Chardonnay: nutbars.

When applying for a new job, you need more than just a resume to stand out from the crowd. But, go too far, and you crash, burn, and become that person whom hiring managers discuss when sharing their worst interview stories.

Speaking of which, yesterday, CareerBuilder published the results of a study in which it asked 2,076 hiring managers and human resource professionals nationwide to share the most memorable methods candidates have used to stand out from the crowd, and whether their creativity got them hired.

Here are ten standout techniques that worked.

    1. Candidate contracted a billboard outside of employer's office.
    2. Candidate gave a resume on a chocolate bar.
    3. Candidate showed up in a suit with a red T-shirt underneath a white shirt. The red T-shirt had a message - "Hire me, I work hard."
    4. Candidate asked to be interviewed in Spanish to showcase his skills.
    5. Candidate crafted the cover letter like an invitation to hire her rather than a request (similar to a wedding invitation).
    6. Candidate climbed on a roof the employer was repairing and asked for a job.
    7. Candidate performed a musical number on the guitar about why he was the best candidate.
    8. Candidate volunteered to help out with making copies when he saw interviewer's assistant was getting frazzled.
    9. Candidate repaired a piece of company's equipment during the first interview.
    10. Candidate sent a message in a bottle.

And these ten moves, not so much...

    1. Candidate back-flipped into the room.
    2. Candidate brought items from interviewer's online shopping wish list.
    3. Candidate sent a fruit basket to interviewer's home address, which the interviewer had not given her.
    4. Candidate did a tarot reading for the interviewer.
    5. Candidate dressed as a clown.
    6. Candidate sent interviewer some beef stew with a note saying "Eat hearty and hire me J."
    7. Candidate placed a timer on interviewer's desk, started it, and told interviewer he would explain in 3 minutes why he was the perfect candidate.
    8. Candidate sent interviewer a lotto ticket.
    9. Candidate wore a florescent suit.
    10. Candidate sent in a shoe to "get their foot in the door."

Me? I'm easy like Sunday morning. I would hire anyone on the spot who did this

What about you? What is the single best, original way a job candidate won you over? Let me know in the comments below. Also, let me know the one that had you calling security.

(h/t @Chaimbook)
August 8, 2013

Few courts award w/c to the drunk, pot-smoker, who falls on his head while peeing

This is the story of a longshoreman who, on January 8, 2006, drank two beers before going to work at 8:00 a.m. Between 8:00 a.m. and 12:00 p.m., he knocked back another three cold ones. At lunch, he washed down his liquid breakfast and snack with another four to five more beers. Between the end of lunch and the end of the day (approximately 4:00 p.m.), the longshoreman ignored the old "beer then liquor, never sicker" refrain and downed a pint of whiskey.

longshoreman.wmv.jpgNow, if you're keeping score at home, his blood alcohol level right about 4:30 was .25. For those of you teetotalers who may be wondering, how bad is .25? Three sheets to the wind, at a minimum; possibly more drunk than John Daly was that time at Hooters.

But I digress, all that booze from dawn to dusk warrants a bathroom break and the longshoreman decided to relieve himself at quittin' time near the bull rail of the dock. Unfortunately, while urinating, the longshoreman fell over the bull rail onto a concrete and steel ledge (approximately six feet below the rail). At the hospital, the docs diagnosed the longshoreman with acute alcohol intoxication -- ya think? --, cannabis ingestion, and a severe scalp laceration to his right temple.

So, naturally, after the longshoreman sobered up, he made a workers' compensation claim.

Now, I don't know much about workers' compensation. Frankly, I hardly know anything. But, my gut tells me that the drunk, pot-smoking, urinator rarely collects.

True dat, said the Ninth Circuit (here). 

You see, apparently, when your drunkenness is the cause of your injury, you can't collect workers' compensation.

Fat, drunk, and stupid is now way to go through life.

[cue music]

(h/t Betty Wang)

Image credit: Longshoreman

August 7, 2013

It's THIS easy to be considered disabled under the ADA

Back PainWhen the Americans with Disabilities Act Amendments Act went into effect in 2009, it significantly lowered the bar for proving a "disability."

How low did it go?

[cue ironic music, you'll see in a sec...]

You'll see how low when your employee -- like you and I -- suffers from "episodic" (that's fancy legal speak for "rare") bouts of back pain. The pain is bearable and the "episodic" flare ups only last a week and come just a few times each year. But right about the time you fire the employee for violating your drug free workplace policy, the back pain suddenly becomes unbearable. Then, after getting fired, your former employee will immediately seek medical treatment from an orthopedic doctor named Dr. Kwak. And, like magic, the pain will subside with each passing day.

I wish I were making this up, but those are the facts of Eastman v. Research Pharmaceuticals, Inc., a copy which you'll find here. Based on these facts, a Pennsylvania federal court found that the plaintiff's disability discrimination claims were strong enough to withstand a defense motion for summary judgment:

Cases like this reaffirm what lawyers like me have been telling employers like you for some time now. If an employee complains to you about some ailment and how it affects the employee's ability to do the job, unless it's a common cold, discuss reasonable accommodations with that employee. And, certainly, don't take action against that employee because of the employee's [insert "disability" here], unless there is no reasonable accommodation that will permit the employee to perform the essential functions of the job.

If this post got your blood boiling a bit, I have the cure-all. Take it from Dr. Meyer and nominate The Employer Handbook, for the ABA Blawg 100 Amici, its annual list of the 100 best legal blogs, which you can do here. The deadline is this Friday, so hop to it. Heck, you can double up on that medication nomination if you want; it won't kill you.

August 6, 2013

Want a really stupid adjective to use on an employee's performance review?

Bucharest_ghetto.jpgThen I suggest "ghetto."

Consider this your performance review ProTip for Tuesday, courtesy of this recent decision from a Texas federal court, in which an employer's summary judgment motion was denied, and a Mexican-American plaintiff's race and national origin discrimination claims will proceed to trial.

The smoking gun, it seems, was an affidavit from one of the plaintiff's supervisors filed in support of the employer's motion for summary judgment, in which the supervisor stated, "I advised Ms. Garza that this 'ghetto-ness' would no longer be tolerated, and that she would be terminated if it continued." The plaintiff argued that this statement was direct evidence of discrimination against her. The defendant countered with the argument that "cases in which comments containing the word 'ghetto' have been viewed as facially discriminatory generally involve African American employees, while Garza is Hispanic."

Now, look folks. I don't know how things work in Texas. They've got a Heisman Trophy winner who appears to be imploding right before our very eyes, and this. I reckon -- see how I did that? -- that the only two things I can trust down there are good barbecue and Tony Romo leading the Cowboys right out of the playoffs in December. The "ghetto relates only to African American employees" defense makes about as much sense as an Amanda Bynes tweet doesn't strike me as compelling.

Well, it didn't move the court either. Instead, the it took the logical route and reviewed the dictionary definition of "ghetto", which does not refer to African-Americans, only to racial minorities, of which Mexican-American is one of them. Then add in that the plaintiff's manager referred to the "ghetto-ness" in Garza's office as a reason behind her termination and noted this on her Termination Report, and you've a got a case going to trial.

And now, comin' atcha with a little two for Tuesday. Shout out to the defendants. We have Jay-Z and Pras, Mya, and ODB.

Photo credit: valentine1692005 (ghetto bucharest) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

August 5, 2013

Judge dismisses "Borgata Babes'" claims of weight discrimination

borgata!

Sex sells. So, when 22 female cocktail servers at an Atlantic City casino pursued claims of discrimination based on their appearance, it came as little shock to me that the judge wasn't buying.

Last month, a New Jersey state court dismissed a lawsuit against the Borgata Hotel Casino & Spa, brought by cocktail waitresses known as the "Borgata Babes," who claimed that they were victims of gender and weight discrimination.

Jennifer Bogdan, writing here for the Press of Atlantic City, notes that, upon hire, Borgata told its servers that they must appear "physically fit" with their weight proportionate to their height and, ultimately, banned the servers from gaining more than 7 percent of their body weight. Supposedly, the women were subject to periodic weight checks and suspension for failing to meet the weight requirements, with exceptions made for medical conditions and pregnancy.

Ms. Bogdan reports that the judge held out little sympathy for the 22 "Borgata Babes," who knew what they signed up for:

"Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server. All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable."
. . .
"The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to 'sex objects' to the Borgata's patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person's participation. Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata."

Without having seen a copy of the judge's 24-page summary judgment opinion, I'm reluctant to offer any sort of in-depth analysis. But I'll note that while some jurisdiction may recognize weight discrimination as a standalone cause of action, nothing under federal law (or NJ state law) expressly prohibits an employer from discriminating against employees based on weight. So, as noted above, the ultimate result here is no shock to me.

UPDATE: Thank you to my colleague, Jennifer Snyder, who provided me with a copy of the summary judgment opinion. As a "did you know," Jennifer informs me that Judge Nelson Johnson also wrote Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City.

August 2, 2013

Man pays court-ordered settlement in quarters -- 600,000 of them!

Yes, quarter.

Seriously, how pissed off do you need to be to pay out $150,000 of a court-ordered settlement in quarters? Jacob Gershman of The Wall Street Journal's Law Blog, writes here that a retired surgeon had a unique way of expressing his displeasure with having to pay out a sizable chunk of court-ordered change.

2006_Quarter_Proof.pngSure he could have gone with the ole flaming-bag-of-doggie-doo trick after hand-delivering a check to the lawyer's office of his adversary. That'd be my move, you know, if I ever lost a case.

Instead Dr. Killjoy went with quarters. Four friggin' tons of 'em, 11 football fields long, delivered in 150 bags of 1000 each from an armored truck that literally snarled traffic outside an attorney's office in suburban St. Louis. It was a "protest against the ruling" from an Illinois appellate court, which had ordered the surgeon to return a significant portion of an insurance overpayment.

So, let me ask you, think back on a situation where it burned you up inside to have to pay an employee. Think of a situation in which you knew the company did nothing wrong but, instead, the company made a "business decision" to pay out. 

Except if you could have done it all over again, you'd have paid the employee in quarters.

Without breaking any confidentiality agreements -- use discretion folks -- tell me about it in the comments below.

Image credit: United States Mint (United States Mint) [Public domain], via Wikimedia Commons

August 1, 2013

GUEST POST: Six key aspects of an employee wellness program

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Joel Cook. Joel is head of strategy at EDP where a team of health & safety consultants work to help businesses improve their employees' health and wellbeing.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Continue reading "GUEST POST: Six key aspects of an employee wellness program" »

July 31, 2013

Senate confirms five members to the National Labor Relations Board

nlrb.jpgLadies and gentlemen, the National Labor Relations Board is back in business.

(Well, somebody tell that to the Board, where it's been business as usual lately. More on that in a moment.)

Yesterday, the Senate voted mainly along party lines to confirm five members -- a full slate -- to the Board.

[Incidentally, Democrats and Republicans agree that this blog kicks butt. If you agree, consider nominating it for the ABA Journal's Blawg 100 Amici, its annual list of the 100 best legal blogs, which you can do here. Bipartisanship at it's best! God Bless America.]

Three Democrats and two Republicans were confirmed. Mark Gaston Pearce (D), originally appointed to the Board in 2010, was re-appointed to the Board and will serve as Chairman. The new Board members are Kent Hirozawa (D), Chief Counsel to Mr. Pearce, Nancy Schiffer (D), an attorney at the AFL-CIO, Philip Miscimarra (R), a partner in the labor and employment group of Morgan Lewis & Bockius LLP, and Harry Johnson III (R), a partner with Arent Fox LLP, who follows me on Twitter, which makes me the Board's Kevin Bacon.

Until yesterday, the Board had been operating with three members, two of whom, Sharon Block and Richard F. Griffin, Jr., were recess appointments of President Obama. Various courts of appeals had split on whether the intrasession appointments of Block and Griffin were constitutional.

Last month, the Supreme Court, which had already ruled that the Board is powerless to rule with less than a quorum of three members, agreed in National Labor Relations Board v. Noel Canning to decide the constitutional issue. But since we now have a full Board, it doesn't much matter. Indeed, any Board ruling in doubt -- quickie elections? -- is sure to be ratified with the full complement of members.

July 30, 2013

An employee who sleeps on the job may still be qualified under the ADA

NappingThat George Costanza was definitely on to something.

A federal court in Virginia (here) recently denied an employer's attempt to dismiss the complaint of a former employee who claimed that his rights under the Americans with Disabilities Act were violated when his employer failed to accommodate him by waking him when he fell asleep on the job.

The ADA requires that an employer accommodate a disabled employee, if doing so will not cause undue burden to the employer, but will still allow the employee to perform the essential functions of his job.

Sure enough, the plaintiff pled in his complaint that he had fibromyalgia (a disability that prevented him from getting a good night's rest), informed his employer, and could satisfactorily perform his job if his employer would just wake him up when he nodded off. However, the plaintiff alleged that his employer refused to provide this reasonable accommodation.

Expressing its skepticism that the plaintiff was qualified to perform the job, the whole sleeping at work thing, the court nonetheless denied the employer's motion to dismiss based on the scant record before it.

Because, seriously, how much could it cost to whip up a double Jolt Espresso? (I take mine with two Splenda and a bendy straw. Just like the Queen of England).

But, alas, this sleep accommodation conundrum will remain one of life's great mysteries, as the parties agreed to dismiss the case last week.

July 29, 2013

"You can take your proposal and shove it up your ass and fire me and I'll see you in court."

Just another Monday here at The Employer Handbook. It's how we roll.

Over the weekend, I read this opinion from the Seventh Circuit Court of Appeals. From the opening paragraph, it had my attention.

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary's presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer's representatives and said loudly: "You can take your proposal and shove it up your ass and fire me and I'll see you in court." Benes stalked out, leaving the employer's representatives shaken. Within an hour A.B. Data accepted Benes's counterproposal: it fired him. He replied with this suit under 42 U.S.C. ยง2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination has been abandoned.

Noting that firing Benes would have been appropriate, if during the mediation, "Benes had punched or shot the employer's representatives" -- you think? -- the Seventh Circuit concluded that even though "his misconduct was a less-serious breach of the mediation protocol," firing Benes was still for employee misconduct, and did not amount to retaliation.

Indeed, just because an employee files a charge of discrimination, or complains internally about discrimination, doesn't insulate him from potential punishment. Retaliation encompasses action that would dissuade a reasonable worker from making or supporting a charge of discrimination. As the Seventh Circuit noted, canning an employee who shoots off his mouth at mediation, not so much:

"The prospect of being fired for an egregious violation of a mediator's protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC's investigation."

I often raise this issue when offering "respect in the workplace" training for employees. That is, just because an employee complains about discrimination in the workplace place doesn't mean that he has carte blanche to violate work rules. The complaint only protects the employee from discipline because of the complaint. If, instead, that employee decides to stop performing job duties, or responds with "shove it up your ass and fire me and I'll see you in court," now you'll know what to do.