Category Archives: Discrimination

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.

You’re Fired! And Other Trump Lessons in Employment Law

Gavel and flagThe 2016 Presidential campaign has provided lots of fodder for the discussion of legal issues that touch on labor and employment law.

Religion.  In December, Donald Trump proposed banning Muslims from entering the United States, citing concerns about “radical Islamic terrorists.”  If an employer has the same concerns about security, can it prohibit the hiring of Muslims?  No. Title VII of the Civil Rights Act and similar state laws prohibit employment discrimination “because of . . . religion,” with few exceptions – such as for religious institutions and very small “mom and pop” businesses.

National origin.  Mr. Trump next proposed a ban on immigration from certain countries that are known breeding grounds for terrorists, and has referred unfavorably to illegal Mexican immigrants.  If an employer has the same concerns, can it prohibit employment of persons born in certain countries?  Again, no.  Title VII and similar state laws also prohibit employment discrimination based on “national origin.”   Moreover, federal immigration law prohibits discrimination based on citizenship status, so long as the person has a legal right to work in the U.S.  Employers cannot ask an applicant whether he or she is a citizen and should only inquire if the applicant is eligible to work in the U.S.  On the other hand, it is illegal to hire undocumented aliens.

Wages.  An employer also would face challenges using Mr. Trump’s “breach and then renegotiate” approach to contracts when dealing with employee wages that already have been earned.  Unlike the U.S. Bankruptcy Code which permits paying pennies on the dollar for some debts, wage and hour laws don’t allow renegotiation of earned employee compensation, even if the enterprise is losing money (e.g., casinos in Atlantic City) or the boss decides to fire the worker because he or she is a “loser,” “stupid,” “lazy,” “low energy,” or “crooked” (see The Apprentice).  Moreover, even if a company goes under, its owners and executives still may be individually liable for unpaid wage obligations.  I know – that is so unfair.

Constitution.  Putting aside whether or not Mr. Trump ever read it, does the Constitution restrict the terms of employment by private employers?  Good news here for private companies – the Constitution generally restrains only the government and public employers.  The bad news – or good, if you believe in civil rights and other protections for workers – is that several other laws, as sampled above and below, fill in the void to restrict private employers.

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.

Is Being Forced to Blow Out the Candles an OSHA Violation?

Businesswoman blowing out birthday candle

We employment lawyers tend to be sensitive folk, but I never considered birthday parties as a source of litigation until now.

Karen Michael, a Virginia employment lawyer, reports on recent lawsuits relating to workplace birthday celebrations, including (1) a worker who claimed age discrimination relating to her co-workers teasing her about her age at her 50th birthday party, and (2) two EEOC suits on behalf of Jehovah’s Witness followers who felt that celebrating birthdays was a “sin.”

Hmmm. The above lawsuits may be legitimate (employees should not be harassed because of age, and employers must reasonably accommodate the religious beliefs of their employees), but I wonder whether I should sue my older brother for intentional infliction of emotional distress. He annually taunted me during my childhood parties, maliciously altering the lyrics after “Happy birthday to you,” to state and falsely allege that: (1) I lived in a zoo, (2) I looked like a monkey, and (3) I smelled like one, too.

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.

‘Borgata Babes’ weight policy and skimpy costumes not sex bias.

A New Jersey trial court this summer rejected the claims of 22 female cocktail servers at Borgata Hotel Casino and Spa in Atlantic City who charged that the casino’s requirement for them to wear skimpy costumes and not gain more than 7 percent body weight after hire was sex discrimination.

In Schiavo v. Marina Dist. Dev. Co., LLC, Superior Court Judge Nelson C. Johnson acknowledged that the plaintiffs, known as “Borgata Babes,” may have felt that the policies subjected them to an atmosphere of sexual objectification, but that sex appeal is a common basis for marketing products and services in today’s society and the law does not regulate issues of “taste, philosophy or personal notions of morality.” He went on to explain that, under New Jersey law, Borgata could base its employment decisions and policies on notions of sexuality and attractive appearances, as long as it did not use gender stereotypes “to impose a professional disadvantage on one sex or the other.” The weight standards applied evenly to both males and females, the court found.

Borgata’s dress policy required the female “Babes” to wear tight skirts and bustier tops, while male servers wore slacks, a club-style T-shirt and black shoes.

Licentious details aside, it is difficult to find many useful takeaways for employers that do not use sexual objectification of employees’ bodies as part of their business model. Nevertheless, the case highlights that it is not sex discrimination for an employer to seek to hire attractive and fit employees for positions, or to require them to abide by a reasonable dress code, so long as the requirements do not disadvantage one gender, apply evenly to both males and females, and are not otherwise discriminatory.

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.

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