Category Archives: Discrimination in the Workplace

Can You ‘Lead the Company from a Wheelchair?’ 

How would you cope personally, if you were suddenly injured and lost the use of your legs?  How would your company cope as a business, if a top executive suffered a debilitating accident, putting her out on disability leave for months and permanently restricting her to a wheelchair?

For United Process Controls (UPC), a furnace equipment manufacturer with plants in Ohio, Wisconsin and China, the situation became more than hypothetical in September of 2015, when Vice President of Operations Eric Boltz suffered a bicycling accident that left him a paraplegic. His physician certified him “currently unable to work at all,” but opined that he could return to office/management work in four-to-six months.

UPC initially provided Boltz with a paid leave of absence and disability benefits, but just seven weeks after the injury UPC President Paul Oleszkiewicz met with Boltz at his home and admittedly asked him “how he could lead the company from a wheelchair.”  The President – apparently unrestrained by any legal or human resources advice — further admitted saying to Boltz that he thought it would be “difficult” for him to return because “a leader has to do sales and be the face of the company.”  Boltz responded that his leadership “came from his brain, not from legs,” and that he could do the job from home and then eventually return to the office.

A series of rather unfriendly communications followed, including UPC terminating Boltz’s wife (a company vice president), and UPC refusing to allow Boltz to work from home, rejecting a November 24 partial release from Boltz’s doctor. The President – often an employer’s worst witness in employment cases – wrote Boltz that “the Company [did] not believe it [was] appropriate, or healthy” for Boltz to try to return to work, and later insisted that he must be released to work “in the office” and “full-time” in order to resume his duties.

Boltz resigned December 30, 2015, claiming he would have faced a “toxic environment” if he tried to return to work, and that due to his “life-changing injury . . . I do not believe my physical and mental health could withstand working under these conditions.”  He claimed to be constructively discharged, and filed suit for disability discrimination and retaliation.

In denying UPC’s motion for summary judgment on Boltz’s claims, a federal judge in Ohio rejected the company’s contention that it had established regular, in-office attendance as an essential function of the job. She noted that Boltz frequently worked from home before the injury, and that federal regulations specifically identify part-time or modified work schedules as potential reasonable accommodations.  As for Boltz’s constructive discharge claim, the court noted that where “the handwriting was on the wall and the axe was about to fall,” an employee who resigns before being fired can claim a constructive discharge.  She also found “most troubling” the President’s questioning of Boltz about whether he could lead from his wheelchair.

So what have we learned?

Rule 1:  Do not allow C-suite executives to have return-to-work communications with disabled colleagues without legal or human resources guidance. What may have seemed “common sense” to the powerful President (asking how Boltz could lead from his wheelchair) turned out to be the “most troubling” evidence of unlawful discrimination.

Rule 2:  The duty to accommodate disabled employees extends to high-level executives.  Although it may seem an undue hardship to permit such an executive to be out on disability leave for months, the law views such temporary leaves and part-time schedules as reasonable accommodations.  Therefore, an individualized analysis is required.

Rule 3:  On-site attendance is not a per se requirement of every job, even at the executive level.  Before the injury, Boltz often worked from home.  His job description did not expressly require in-office attendance.  And he put on evidence that his job mostly entailed managing operations and people remotely by phone and email.  If a company believes on-site attendance is essential, it needs to put that in the job description, be able to justify the requirement if challenged, and not allow the employee to frequently work from home when healthy. But beware that recent court decisions are holding employers to a higher standard in justifying the need to work from the office, as technological advances have increased mobile productivity.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Worshiping both God and the Almighty Dollar

Last month we told you about corporations being able to sue if they were victims of race discrimination.  This month, we learned of a case out of Michigan holding that corporations can claim “sincere religious beliefs” that justify discriminating against transgender employees.

In EEOC v. R.G. & G.R. Harris Funeral Home, a federal judge ruled that the Religious Freedom Restoration Act (RFRA) empowers a for-profit corporation to terminate an employee for transitioning from a man into a woman. According to the court, the employer demonstrated that its religious belief that gender is “an immutable God-given gift” would be “substantially burden[ed],” if the funeral home were required to employ a transgender worker. The district court’s ruling extended the reasoning of the U.S. Supreme Court’s decision, Burwell v. Hobby Lobby Stores, Inc. (2014), holding that a privately held corporation can be a protected “person” under RFRA.

The Michigan decision is unprecedented and raises difficult questions as to whose civil rights are more important — those of the employee protected from discrimination based on sexual stereotypes, or those of the employer, claiming religious beliefs.  What if a corporation claims a “sincerely held religious belief” that disfavors disabled persons, older workers, or racial minorities?  Would the court then allow discrimination against employees in those categories?

We shall see. In any event, privately held companies with religiously active owners can be expected to assert more RFRA rights and religious defenses in the future.  For a related discussion of state religious freedom laws at work, please see the attached American Bar Association paper that I co-presented at the Employment Rights and Responsibilities Committee meeting this spring.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

AutoZone Lawyers Crash into the $186 Million Pregnancy Zone.

Pregnant woman at work with laptop looking stressedCertain types of employment lawsuits, like certain cars, are more dangerous than others, as AutoZone Stores – and its legal department – recently learned the hard way.

Store manager Rosario Juarez claimed she was harassed, demoted and terminated because of her sex and pregnancy, and was a victim of a “glass ceiling” at the company. She presented an array of damaging facts at trial, including that after years of successful employment and promotions, within one month of disclosing her pregnancy she was asked to take a lower position due to her pregnancy and suffered “more aggressive, mean and critical” supervision. When she complained to the human resources department, nothing was done and the record of her complaint was destroyed, she claimed. She also put forward evidence that the vice president of operations had said, “what are we running here, a boutique? Get rid of those women.”

This all sounds pretty bad, right? It gets worse. After she filed a charge of discrimination with the California state government, she was fired, with the company blaming her – apparently falsely – for a missing cash envelope.

At trial last year, a jury awarded her $872,720 in economic damages and emotional distress, and a whopping $185 million in punitive damages. The jury’s exorbitant award reflects, in part, how strongly our society feels about the mistreatment of pregnant women.

Late last year a federal judge affirmed the punitive damages award. In an opinion that should send chills down the spines of in-house counsel, the court noted that it was lawful to hold the company responsible for willful violation of the law as the jury could have found that AutoZone’s legal department “committed, authorized and/or ratified” the malicious, discriminatory actions. AutoZone is expected to appeal.
The case highlights that certain plaintiffs – the pregnant, the ill, the injured, the old and the weak (as well as those who selflessly care for them) – are more sympathetic than others, especially when they have a solid work history, as Ms. Juarez apparently did.

Don’t let this happen in your workplace – get in the zone – the empathy zone.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Context matters when it comes to offensive comments at work

Most employment lawyers in the northeast and mid-Atlantic are familiar with the Taylor v. Metzger case, in which a single racial epithet — referring to a county sheriff’s officer as a “jungle bunny” before her co-workers — was found to be enough, by itself, to create a racially hostile work environment.

Now comes the other end of the spectrum, a federal court in Arkansas holding in November that the repeated use of a form of the n-word at work — including in reference to the complaining employee herself, and continued use after she complained — did not create a hostile work environment.

As with many employment law disputes, the case of Tyrrell v. Oaklawn Jockey Club (W.D. Ark. Nov. 2, 2012), proves that context matters and — as in real estate — location, too.

Helene Tyrrell worked as part of the kitchen staff at Oaklawn, an Arkansas horse-racing venue. Shortly after starting work, Tyrrell alleged she was subjected to a barrage of offensive language by African-American co-workers, including “allegedly heavy use of the n-word.” Most of the language was not directed at Tyrrell, but she recalled one instance in which another kitchen staff member said to her and another kitchen-staff member, “I told you niggas we could get this done . . . . Y’all my niggas.”

Despite the racially charged language, the court, applying a reasonable person standard, found that Tyrrell did not suffer a hostile work environment, which the law generally defines as offensive conduct in the workplace, based on a protected characteristic, which is so severe or pervasive that it makes the work environment hostile or abusive. Importantly, the court noted that most of the n-word references were not directed at Tyrrell, and on the one occasion it was used in a non-derogatory fashion (praising her and others for accomplishing a task), and “was at most coarse jesting.” The court also noted other key factors in favor of its judgment for the employer: (1) Oaklawn management promptly and thoroughly investigated Tyrrell’s complaints and (2) the company instructed staff members to refrain from using offensive language and took action against one employee who failed to heed the warning. As such, the court ruled it was not appropriate to hold the employer responsible for the comments by the co-workers.

Would such a decision be rendered by a more liberal judge in Philadelphia? Who knows, but the case does illustrate the importance of putting alleged comments and actions in context.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

‘That’s too funny’ – employee defeats her own claim

A recent decision by a federal court in Illinois highlights the importance of employers conducting prompt and thorough searches of employee email and Internet usage when claims of discrimination and harassment are raised. Conversely, employees should consider and review their own conduct before raising claims that they are offended by the conduct of others.

In Jacober v. Dep’t of Agriculture, Betty Jacober claimed a sexually hostile work environment because, among other things, her male supervisor had a female intern take photographs of him wearing bib overalls with no shirt underneath, exposing his bare shoulders and part of his chest, and then inserted the photos into a PowerPoint presentation at work.

In dismissing the lawsuit, the court relied heavily on evidence that Ms. Jacober’s work email showed she had sent and received pictures of males wearing less clothing, including one email showing a man with a bare buttocks, about which Ms. Jacober emailed to the sender, “That’s too funny,” and then forwarded the image to others.

“Plaintiff’s own actions therefore make it unbelievable to this Court that she could find the photographs [of her boss] to be unwelcome sexual conduct that made her work environment intolerable,” Judge William Stiehl wrote. “She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her manager].”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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