The calls to our office involving claims for disability discrimination seem to be rising exponentially, and a recent report by the Equal Employment Opportunity Commission explains why.
The EEOC reports that one-quarter of all the discrimination complaints filed with the agency in 2010 involve discrimination claims. There are probably many factors involved in that statistic, but I suspect a major factor is the willingness of plaintiffs’ attorneys to pursue such claims. Discrimination claims based on age, for example, can be hard to prove. If age is truly the motivation behind some adverse job action, it is unlikely that the employer telegraphed that fact. The proof of discrimination will need to come from a showing of disparate treatment, with little or no evidence that the employer had it out for older employees. But with a disabled employee, proof of discrimination can come from the failure to accommodate the disability.
The recent Supreme Court case of Roby v. McKesson Corp. illustrates the point. In that case, the plaintiff was a valued employee for more than a decade, but began taking medicine to deal with some stress issues. That medicine apparently came with some side-effects, including body odor and open sores cause by her scratching herself. She was sometimes unable to go to work, but she could not always comply with the company’s requirement of 24 hours notice (and, frankly, how often does any employee know 24 hours in advance that he or she is going to be sick?). Add to this, the supervisor was alleged to have berated her at meetings about her condition. She sued and obtained a judgment for $20 million, although it was subsequently reduced to $4 million.
In another case, Sandell v. Taylor-Listig, Inc., an employee suffered a stroke, resulting in his use of a cane and slowed speech. The company eventually terminated him, and he sued for discrimination. The trial court threw out the case on a motion for summary judgment, but that ruling was reversed on appeal, finding that while the company had claimed the termination was for poor performance, there was sufficient evidence to let a jury decide whether that claim was a pretext.
Lesson for businesses: The definition of what constitutes a disability is very broad. If you have an employee claiming some condition that is limiting their ability to work or which needs some special accommodation, listen. You have an affirmative duty to engage the employee in a good-faith dialogue to determine what can be done to accommodate the condition, even if the employee never makes such a request.
Less than a month ago I wrote on the folly of terminating an employee at an inopportune time, even if your reasons are just and your motives are pure. Apparently the lawyers at Wal-Mart are not subscribers to the Business Law Alert because they did nothing to stop a very questionable termination.
Melissa Jackson is one of several plaintiffs suing Wal-Mart for sexual harassment. Jackson and the other women allege that Wal-Mart did nothing to stop reported sexual harassment by one of the employees. That suit was filed on January 22, and on February 16 Wal-Mart decided it was the perfect time to fire not only Jackson, but her husband as well. Both had been there for close to a decade, and during that time Wal-Mart had never seen a need to fire them, but less than a month after she files an action for sexual harassment, she and her husband had to go.
Do you see how bad that looks? Can you comprehend what the jury is going to think about that decision?
Let me switch perspectives for a moment and explain why Wal-Mart may have made that decision. As I wrote previously, unscrupulous employees will sometimes file employment lawsuits specifically because they know they are on their way out the door. If in defense of the sexual harassment claim by Jackson, Wal-Mart is going to claim that she was about to be terminated and only filed this suit in an effort to keep her job, then Wal-Mart should remain consistent and continue with the termination. Alternatively, it could be that Jackson and her husband have developed attitude problems about Wal-Mart, and are just too toxic to keep around. (I have no personal knowledge of the facts of this case, and offer this case only as a hypothetical fact pattern for discussion.)
But with all that said, was there no other way to handle this matter? I once spoke to the owner of a business that had come up with a very creative approach. He had an employee who was a perpetual problem, not doing his job and filing what the business owner perceived to be fraudulent worker's compensation and labor claims. He desperately wanted to fire the employee, but he knew any termination would be met with a wrongful termination action for retaliation. So, the business owner put the maintenance worker in charge of the flagpole. His duties were to raise and lower the flag, keep the pole and flag clean, and to make certain no one disturbed them. He was given an ergonomic chair to sit on near the flagpole so that he would not make any claims for back injuries, and there he sat, eight hours a day, five days a week, watching the flagpole. The employee could not stand the tedium, and within two weeks had quit.
Although the business owner's plan worked perfectly in that case, I don't suggest for a minute that this is a workable solution. Aside from the fact that many employees might be perfectly content to work as a flagpole watcher, from a legal standpoint the worker could still have made the claim that this newly created position was a form of retaliation. But I offer this tale as an example of an employer that thought outside the box. He looked at the bigger picture and successfully avoided a costly lawsuit.
Businesses tend to think in black and white terms. I often see cases where an employee loyally worked for a company for years, and after being rewarded with a promotion, the company terminates that employee because he is unable to perform the new job duties. Why is no thought given to returning the employee back to the position where he was a valued employee?
Lesson for all businesses: When you are considering terminating an employee and are asking yourself, "how is this going to look?", then take a moment to also ask yourself, "can I solve the problem with something other than a termination?"
Can you say, "appearance of impropriety"?
On a regular basis, I get calls from companies that apparently found it essential to terminate an employee that had just announced she was pregnant, or one who had just requested a leave under the Family Medical Leave Act, or another who just filed a Workers Compensation claim, etc. In all cases, the employers swore to me that the termination had nothing to do with the pregnancy, FMLA request or Workers Comp claim, and I'm convinced that they were sincere.
You see, unscrupulous employees who know how to work the system will take actions to create the appearance of a wrongful termination when they know the ax is about to fall. Sometimes it is blatant to the point of being laughable. I was recently involved in a case where the employee, when summoned to her supervisor's office to discuss a major infraction, took a detour to Human Resources to claim sexual harassment. She didn't have much time to think up a story, so she reported that the sexual harassment she had suffered was seeing her supervisor hug another female employee -- a year earlier -- when that employee's mother had died. Silly yes, but that didn't keep her from claiming that her subsequent termination was retaliation for reporting this unforgivable "sexual harassment."
As an employer, you need to know that the deck is stacked against you if an employment claim goes to the jury. Most jurors do not know about at-will employment, and go into the trial with the preconceived notion that an employer must have good cause to fire an employee. Of course the judge will instruct the jury on the law of at-will employment, but if the jurors hear that you fired an employee for anything less than murder and/or mayhem, right after the employee, say, filed a workers compensation claim, you will be fighting an uphill battle.
The recent court decision of Crawford v. Metropolitan Government of Nashville and Davidson County provides a perfect example of, "what was the employer thinking?" There, the plaintiff employee was questioned about whether she had witnessed sexual harassment by a certain supervisor. She had never volunteered any information, but when specifically asked, she related two instances she had witnessed. Two other employees gave similar accounts.
All three employees were terminated after reporting what they had seen. Crawford sued for wrongful termination on a theory of retaliation, but the case was thrown out by the District Court on the grounds that she had not instigated any sort of investigation, but had merely answered questions. The Court of Appeals agreed, but the Supreme Court reversed the decision and sent the case back for trial. The Supreme Court correctly held (in my opinion) that reporting what she had seen was sufficient to bring her under the anti-retaliation provisions of Title VII. Back in the trial court, Crawford won $1.5 million in damages.
Clearly something was rotten in Nashville, and it certainly appears that justice prevailed. But the case illustrates the hubris of some employers. Don't engage in this type of behavior, of course, but also be aware of any facts that make it look like you are engaging in this type of behavior. Do you really need to terminate that employee who is out on a disability claim? Do you really need to terminate that employee that just broke off her affair with the boss? If his or her work performance is that bad, then document it along with any future infractions. If the employee is beyond redemption, their performance will justify the termination on a later, not so inopportune day. If not, then maybe the employee was not as bad as you thought, and you will have avoided trying to explain your way around some very bad circumstances. Some may view this as caving, but I view it as a pragmatic recognition that when it comes to a trial for wrongful termination, sometimes perception is reality.
For more information about the Crawford decision, read the excellent summary provided by attorney Ellen Simon here.
The Internet, through social websites and blogs, offers fertile ground for employers that want to run an informal background check on current and prospective employees. And, since everything eventually ends up in court, the actions taken when something unacceptable is found during such a background check provide new issues for lawyers who deal with free speech and defamation.
Take the case of Nina Yoder. She was expelled by the University of Louisville's nursing school because of her Internet postings. Yoder has now sued the university, alleging that the expulsion violated her First Amendment rights.
The nursing school expelled Nina Yoder on March 2, saying her MySpace postings "regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold," according to a copy of her dismissal letter, which was attached to the suit.
In her blog postings, copies of which she attached to her own complaint, Yoder makes caustic comments about Christians and blacks. I attempted to go to the website to make my own determination about the appropriateness of her comments, but she appears to have taken down her MySpace page.
According to an article posted at courier-journal.com, the nursing school is upset because some of Yoder’s postings are about specific patients (although they are not mentioned by name). In one of her postings, she wrote about a birth she witnessed: "Out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell ... screeching and waving its tentacles in the air." I’m not sure a patient would want the miracle of her child’s birth described in that way by someone who should, like any medical professional, respect her privacy, but I can also see that as a failed attempt to humorously describe what she had seen.
But there was far more. The school officials were probably equally unimpressed when Yoder wrote about how the nursing school is in downtown Louisville, adjoining an area "inhabited by humanoids who have an IQ of 10 and whose needs and actions are basically instinctive. As in, all they do is ––––, eat, –––– and kill each other." She did, however, graciously concede, "OK, maybe I am generalizing yet again."
As discussed in a prior blog posting, Yoder and her supporters are using the "there’s so much trash on the Internet you can’t hold my trash against me" defense. As Yoder wrote in her petition requesting reinstatement to the nursing program, "If profanity was grounds for dismissal for the School of Nursing, the nursing school would go bankrupt." Her petition to the school for reinstatement can be seen here.
The court has not yet set a hearing date on Yoder’s request that the nursing school be ordered to reinstate her. We’ll know then if the trash defense worked. The standards are different in the academic arena than in the employment context. Under California’s at-will presumption, an employer would generally be safe terminating an employee for something said on a blog, but California’s Constitution affords more free speech protections than even the First Amendment, so tread carefully. For a more detailed analysis of employees and blogs, see You Write What You’re Told.
[UPDATE] Thanks to Web Savy Med Student for providing me with an update on this case. I was unable to find the court's ruling, but according to Web Savy and other sources, Yoder took the case to court and was reinstated to the nursing school. The court dodged any free speech issues, and instead decided the matter strictly on the honor code. Although her comments were "objectively distasteful", according to the court those comments did not deal with her profession and did not violate any confidentiality since the patient could not be identified.