Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

On February 9, 2010, U.S. District Judge Linda Reade ordered the Equal Employment Opportunity Commission (link courtesy of Ross Runkel) to pay Cedar Rapids based CRST Van Expedited $4.5 million in attorney’s fees and costs it incurred to defend itself against a meritless sexual harassment lawsuit.

The action started in 2005 when a CRST employee filed an EEOC charge alleging sexual harassment. The Agency never completed its investigation, and the employee herself did not pursue an action in court. Nonetheless, in 2007, the EEOC filed suit in the Northern District of Iowa on behalf of the woman and other unspecified female employees. Ultimately, the EEOC identified 270 women it claimed were victims of sexual harassment at the company.

The court dismissed or granted summary judgment to CRST on all but 67 of the women involved, because of a lack of evidence to support the claims. Later, the court dismissed the claims involving the remaining 67 women.    The reason for the dismissals: the court found the EEOC conducted no investigation of the circumstances involving the 67 before filing the suit on their behalf, and did not make a finding there was reasonable cause to believe discrimination occurred. The EEOC’s failure to investigate, the court concluded, prejudiced CRST because it denied them the opportunity to conciliate and foreclosed the possibility that some of the claims might be settled before the necessity of defending a federal lawsuit.  According to Judge Reade, "the EEOC's actions in pursuing this lawsuit were unreasonable, contrary to the procedure outlined by Title VII, and imposed an unecessary burden on CRST and the court."   She characterized the EEOC's litigation strategy as "sue first, ask questions later."     

Judge Reade’s order was striking not only in the amount of the award but in the fact that it sanctioned a federal agency because of the burden it imposed on a private company to defend itself against claims that did not really exist.   Any company that has been the target of an EEOC lawsuit is likely to cheer Judge Reade’s attorney fee award.   It seems only fair that the Agency should be subject to the same standards as a private litigant when brining a lawsuit; that is, it should be required to have a good faith belief, based upon a reasonable investigation, that its claims are supported by the facts and law.  

Not everyone agrees, however, that the sanction imposed is a good thing. Marcia McCormick at Workplace Prof Blog wonders what alternatives were available to the EEOC. She seems to take the position that the EEOC should have the right to litigate harassment claims of persons who never filed a charge and whose circumstances were never investigated.  

Jon Hyman at Ohio Employer’s Law Blog cheers the result, but warns that this sanction could be a mixed blessing for employers.    He believes it will cause the EEOC to conduct more in-depth investigations of its claims, which could in the end impose more administrative burdens than is commonly the case now.   

A very interesting case that likely is not yet over.  The EEOC believes the decision was wrong and intends to appeal. 

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On January 21, the U.S. Court of Appeals for the Eighth Circuit issued a decision that is likely to expand the frontiers of sex discrimination litigation in this circuit (which covers Arkansas, Missouri, Iowa, Minnesota, Nebraska, and North and South Dakota).   In Lewis v. Heartland Inns of America, a female plaintiff who had masculine characteristics and mannerisms was terminated from her job as a motel night auditor.   The trial court granted summary judgment to the employer on the plaintiff's sex discrimination claim because the plaintiff presented no evidence she was treated less favorably than similarly situated males, or that the employer was biased against women in favor of men.  The court of appeals reversed, and held that a decision maker's remarks  to the effect that female employees should be "pretty" and feminine was sufficient evidence to generate a jury question whether the employer was motivated by unlawful sex discrimination, even in the absence of evidence concerning the treatment of male employees. 

With this decision, the Eighth Circuit joined the First, Second, Sixth, and Ninth Circuits in holding that an employer’s expectation that an employee should act consistent with a preferred sex stereotype may constitute sex discrimination.

The plaintiff in Lewis worked part time at the front desk at various locations of the Heartland Inn.  She generally had worked the overnight shift. For two years Lewis’ managers thought she was a good employee and requested she receive pay raises. One of her managers testified that Lewis “made a good impression” , and another that she “did her job well.”   There was a record of at least one customer comment that praised Lewis.   In December 2006, Lewis’ manager requested permission from Heartland’s Director of Operations to offer Lewis a full time night auditor position on the 3 p.m. to 11 p.m. shift.   The Director of Operations, who had never seen Lewis, granted the permission.

After seeing Lewis, the Director of Operations had second thoughts. She told Lewis’ manager that Lewis was not a “good fit” for the front desk. She apparently lacked the “Midwestern girl look”. The Director of Operations, who was also female, had been heard to boast about the appearance of women staff members, and indicated that Heartland staff should be “pretty.” 

Lewis herself described her appearance as “slightly more masculine.” She preferred to wear loose fitting clothing, including men’s button down shirts and slacks. She avoided makeup and wore her hair short. Lewis has been mistaken for a male, and referred to as “tomboyish”. 

The Director of Operations ordered Lewis’ manager to move her back to the overnight shift.   About the same time, a new policy was instituted that required any employee hired for a front desk position to go through a second interview.   Heartland purchased video equipment so that the Director of Operations could view a candidate before extending an offer.   Even though Lewis had been working the 3-11 shift for a month, the Director of Operations insisted she go through a second interview. When Lewis protested and said it was illegal, she was terminated.

The district court granted summary judgment to Heartland because Lewis produced no evidence that she was treated differently than similarly situated male employees.   The Court of Appeals held, however, that the district court was wrong to require the plaintiff to present evidence concerning male employees, noting that “comparative evidences is certainly not the exclusive means by which a plaintiff may establish an inference of discrimination.”   

The critical issue, the court reasoned, is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”   According to the court, the statements that front desk personnel should be  “pretty”,  and that Lewis lacked the “Midwestern girl look” was sufficient to generate a jury question whether her gender played a role in the decision.  In other words, it was not necessary to offer evidence that male employees were subject to a different standard because a reasonable fact finder could find that the terms by their nature apply only to women.  

While it is not clear the Lewis decision will result in a flood of new lawsuits, it nonetheless expands the boundaries for potential sex discrimination claims in a way that will make it more difficult for employers to defend.   It is important to note that stereotypical attitudes concerning how women should behave was already relevant in such cases.  However,  a plaintiff still had to show that, as a result of such attitudes, female employees were at a disadvantage compared to males.   Now, it seems, a female employee can prove unlawful sex discrimination by showing she was disadvantaged compared to other females who acted more feminine than she.  Likewise, a male employee can simply show that male employees who were more masculine were favored over those who exhibited feminine characteristics.    The difficulty is that, unlike gender itself, which is an objectively verifiable fact, many notions of femininity and masculinity are inherently subjective.  

The Lewis case is one of those decisions where bad facts make bad law.   Based upon the record presented in the court's opinion, there is little doubt Ms. Lewis was treated poorly for reasons unrelated to her performance.   Her appearance certainly put her at a disadvantage compared to other female employees.   But there simply was no basis to conclude she was at a disadvantage compared to similarly situated males.

For other perspectives on this case, see the following:

"Of Slacks and Sex Discrimination", in Work Matters Blog.

"Eighth Circuit Issues Interesting Appearance/Sex Stereotyping Case", in Workplace Prof Blog.

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This is the time of year for reflection--when we look back on what happened during the past year, and look ahead to the coming year.  There are many commentaries and opinions on what was good and bad about 2009, but there is no doubt it was an eventful year for those of us in the labor and employment law world.    In this post we give a month-by-month account of the significant employment law events of 2009:

January:   To usher in the new year, on January 1, the ADA Amendments Act became effective.  On January 26, the U.S. Supreme Court issued a ruling in Crawford v. Metro Metro Government of Nashville, which held that an employee who answered questions as part of an internal harassmenti nvestigation was protected from retaliation under Title VII's "opposition" clause.  On January 29,  President Obama signed into law the Lilly Ledbetter Fair Pay Act.  The Ledbetter Act was the first law the President signed after his inaugeration.  

February:  The president signed into law the American Recovery and Reinvestment Act of 2009 (a/k/a the "Stimulus").    Important to employers and employees, the law provided a 65% premium subsidy for nine months to employees involuntarily terminated from their jobs since September 1, 2008.  

March:   On March 10 the Employee Free Choice Act (EFCA) was introduced in both houses of Congress.   The proposed EFCA contained the most signicant changes to labor law since the NLRA was enacted in the 1930s.  While the law was and is a top priority for labor unions to get enacted, so far its most controversial provisions, inlcuding elimination of secret ballot elections,  mandatory arbitration, and increased penalties for unfair labor practices make the proposed law unpopular with business interests.

April: The U.S. Supreme Court issues its second labor and employment decision this year: Penn Plaza, LLC v. Pyett.   The Court held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.”  On April 24, the EEOC issued a "Best Practices" document relating to employees with caregiving responsibilities.    The Iowa Supreme Court issued its decision in the case of Varnum v. Brien, which held that Iowa's law that permitted marrigage licenses to be issued only to a man and a woman violated the Iowa Constitution.

May:  On May 1 Governor Culver signed the Iowa version of the Ledbetter Fair Pay Act.  This law amended to the Iowa Civil Rights Act to incorporate provisions of both the Ledbetter Act and the Equal Pay Act.    The H1N1 pandemic was in the news, and the EEOC issued guidelines to help employers comply with the anti-discrimination laws while helping stop the spread of the disease.   Sonia Sotamayor was nominated to replace the retiring Justice Souter on the U.S. Supreme Court.

June:  The U.S. Supreme Court issued two important employment law decisions this month: Gross v. FBL Financial Services, Inc. and Ricci v. DeStefano.    While there is some disagreement, our view is that both decisions were favorable for employers.

July:   The phenomenon of social networking and its impact on the workplace is becoming the issue de jour.    Al Franken is confirmed as the winner of the Senate election in Minnesota, which gives the Democrats a 60th seat and filibuster proof majority.  However, the proposed EFCA law still goes nowhere.  With the economy still in the doldrums, the Department of Labor issues a document addressing frequently asked questions relating to furloughs.

August:  It's the dog days of summer, which means the Iowa State Fair, and controversy over allegations of religious discrimination.

September:  The Iowa Supreme Court issues a ruling in DeBoom v. Raining Rose, Inc. one of the court's most important employment discrimination decisions.   The EEOC released proposed regulations on the ADA Amendments.  In wage and hour news, convenience store chain Casey's General Stores paid $11 million to settle FLSA claims of thousands of current and former employees.

October: President Obama signs into law modifications to FMLA relating to military caregiver leave and qualifying exigency leave relating to military service.

November: The Genetic Non-Discrimination Act becomes effective November 21.  Data from both the Iowa Civil Rights Commission and EEOC show officially what many of us observed in our practices: an uptick in discrimination claims this year.  On November 30, the Eighth Circuit issues an opinion in the remand of Gross v. FBL Financial.   Despite Gross' arguments that his jury verdict under the Iowa Civil Rights Act should stand, the court sent the case back to the Southern District of Iowa for a new trial.

December:  The U.S. Department of Labor issued an "Employment Law Guide" which covers topics such as wage and hour, occupational safety, and employee benefits, among others.   The EEOC and Department of Labor release their regulatory agendas for 2010.   Finally, President Obama signs a law that will extend the COBRA subsidy another two months, until February 28, 2010.

Best wishes for the rest of 2009 and a happy and prosperous 2010!

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There is an interesting op-ed in today's Des Moines Register concerning religious discrimination in the workplace.   The author, Lake Lambert III,  is a professor of Religion at Wartburg College in Waverly.  He contends employees are subject to religious tyranny because Title VII does not give enough protection to employees' ability to practice their religion at work.   Under existing law, an employer is required to provide a reasonable accommodation of an employee's religious practice, unless it would result in an undue hardship on the conduct of the employer's business.  Generally speaking, an accommodation is an undue hardship if it is costly, compromises safety, decreases efficiency, infringes on the rights of other employees, or causes other employees to do more than their share of hazardous or burdensome work.  

Professor Lambert supports a proposed law known as the "Religious Workplace Freedom Act(RWFA)", which would change the existing reasonable accommodation standard.  Under the proposed law, for an accommodation to be considered reasonable, "the accommodation shall remove the conflict between employment requirements and the religious observance or practice of the employee."   The only defense to such an accommodation is if it requires "significant difficulty or expense."  In other words, the burden would be on the employer to alter any employment requirement that conflicts with an employee's religious practice, unless the employer can prove it would be too financially costly.

Few would disagree that employees should be permitted time off to attend religious services, observe holy days, and the like.  If that is the problem, the proposed changes in the law could be more narrowly tailored to address it.   In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves.  What happens when the practices of different religions conflict?  What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles?  Under existing law, employers have more  flexibility to address these situations in the context of legitimate business needs.  The proposed RWFA tips the balance too far the other way.

While Professor Lambert's proposal may sound good in theory as a way of promoting religious tolerance, in practice it imposes unreasonable obligations on employers and adds very little to religious liberty. 

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The EEOC has revised its "Equal Employment Opportunity is the Law" poster.    The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA").  Employers can either obtain a new poster, or a supplement their existing poster.   The new posting is mandatory effective November 21, 2009.  Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC's website.

The FMLA Blog reports on amendments to the FMLA the president signed this week.   Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances.  In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county.  Under existing law, such leave applied only for covered military members in the Reserves or Guard.

The best way to avoid workplace problems--avoid bad hires in the first place.  Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant. 

A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey.   The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment  to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.

This Bud's for you.  A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev)  filed a lawsuit against the company for gender discrimination.   The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts.   Most shocking to any viewer of beer commercials is this allegation:  that the company fostered a locker room and frat party atmosphere in the workplace.  

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EEOC statistics for the year ended September 30, 2008, the most recent data that is available, show that charges of retaliation increased by 23% compared to the prior year.   In addition, more than 1/3 of the charges filed with the Agency allege retaliation as one of the claims.   According to this article in The Wall Street Journal, retaliation claims have tripled since the EEOC started keeping track of them in 1992.   The statistics don't include data for the year ending 2009, but anecdotal evidence from lawyers and human resource professionals suggests the trend continues to accelerate.

One reason retaliation claims are so common is that it is easier to prove retaliation than discrimination.   An employee who charges retaliation does not have to prove that he was discriminated against--only that he engaged in what is called "protected activity", and as a result the employer took some adverse action against him.  

"Protected activity" includes a broad range of actions, from filing a formal charge with the EEOC or state civil rights commission, complaining to an HR official about harassment, giving an interview in connection with an internal discrimination investigation, or providing testimony in support of another employee who claims discrimination.

A 2006 U.S. Supreme Court decision, Burlington Northern v. White, also made it easier for employees to prove retaliation.   In White, the Court held that the "adverse action" to which an employee is subject does not have to involve something substantial like a termination, demotion, or cut in pay.  Rather, the employer's action need only be "materially adverse" to a "reasonable employee".  What does that mean?  According to the Supreme Court, "materially adverse" means anything that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination"

In Iowa and many other states, an employee may file a retaliation lawsuit if they were terminated for exercising certain legal rights or fulfilling legal obligations.  Examples include reporting an on the job injury, filing a workers' compensation claim, or serving on a jury.  This type of claim is known as "wrongful discharge in violation of public policy."  It is slightly different than retaliation based upon discrimination because it requires an actual termination; some lesser action will not suffice.

This is a lesson most employers and HR Professionals have heard, but it bears repeating: be cautious and deliberate when taking any action against an employee who may have engaged in protected activity.  That does not mean avoiding discipline or other action that is necessary, but it does mean making sure you have legitimate and documented reasons for whatever action is taken. 

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A recent decision from the Eighth Circuit provides good training material about what "not to do" if you want to your company to avoid being liable for discrimination, and possibly punitive damages.

The EEOC filed suit against Siouxland Oral and Maxillofacial Surgery Associates, a medical clinic in Sioux Falls South Dakota.   The complaint alleged that Siouxland terminated one employee and refused to hire another because of their pregnancy.  

The first employee, Richelle Dooley, had worked for the clinic for two days when she was terminated.   She told the office manager she was pregnant at the time she was filling out health benefit forms.   The next day during a meeting with the business manager, the managing partner was informed about Dooley's pregnancy.   He reportedly responded as follows:

"the young lady we just hired is going to have a baby this summer, she isn't going to be available to work.  It doesn't make any sense to begin training her...when she won't be able to work the summer.... [W] are going to have to let her go."

The business manager and another physician in the clinic apparently told the managing partner they could not terminate Dooley because of her pregnancy.  Nonetheless, she was fired.

When Dooley asked the business manager why she had been fired after only her second day on the job, she says she was told:

"your baby is going to be due during the busy season";  the clinic "never would have hired [you] if they had known [you were] pregnant." 

A few months later, the office was seeking an employee to work in central sterilization and post-operative recovery.   Angie Gacke applied for the job.  The following is reported to have occurred in the job interview:

Applicant:  "I don't know if this is a problem or not, but I do want to let you know that I am four months pregnant."

Interviewer: "yes, it's a problem.  You are just going to end up causing more work for everybody else than you will be helping them."   

Applicant:  "my due date is in August"

Interviewer: "that's the middle of our busy season, and we don't grant any vacation or anything to anybody during the busy season."

The clinic's defense to Gacke's failure to hire claim was that she was overqualified.   The interviewer had written the following on a copy of her resume:

"overqualified for job", she "needed insurance", and she was "4 months pregnant!"

Based upon this evidence, the jury found Siouxland had discriminated against the plaintiffs because of their pregnancy.  However, the trial court refused to instruct the jury about punitive damages.    On appeal, the Eighth Circuit found there was evidence managerial employees engaged in discrimination while knowing that such discrimination was prohibited by federal law.  The Appellate Court held it was error to grant Siouxland judgment as a matter of law on the punitive damages claims, and remanded for a new trial solely on the issue of punitive damages.

Enough said.

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In a ruling issued September 3, 2009, the U.S. Court of Appeals for the Eighth Circuit held that an employer that follows an affirmative action plan in making an employment decision can be guilty of unlawful race discrimination.    The Court's decision in Humphries v. Pulaski County Special School District is the first in the Eighth Circuit to address the hot button issue of reverse discrimination since the U.S. Supreme Court's ruling on the subject in Ricci v. DeStefano last June (See post here for discussion of the Ricci case).

The plaintiff in Humphries was a white female with a doctorate degree in elementary education.  She worked as a school counselor in the Pulaski County (Arkansas) School District for nearly twenty years.  Starting in 2001, Ms. Humphries applied for virtually every assistant principal position that came open in the District, but was never selected.   She claimed she was passed over for the positions because of her race; specifically, she alleged the District had a policy of ensuring that at least one assistant principal in each school is a different race than the school's principal.   The plaintiff also argued she was not hired as an assistant principal because the School District's affirmative action plan unlawfully favored black candidates. 

The trial court granted summary judgment to the School District, finding that the plaintiff failed to present direct evidence of race discrimination.  The Court of Appeals reversed the trial court, holding that, an employer's adherence to an affirmative action policy may constitute evidence of unlawful race discrimination.   If the employer defends a hiring decision on the basis that it followed an affirmative action plan, then the question becomes whether the affirmative action plan is valid in the first place under Title VII and the Equal Protection Clause.   

The Humphries decision is an important reminder that employers should periodically revisit their affirmative action and diversity policies to ensure the policies comply with the requirements of Title VII.  Even if  plan was valid when it was put into place, does not mean it remains so today.   Some important factors to consider include the following:

1) A lawful affirmative action plan must be both remedial in purpose and narrowly tailored to meet the remedial goal.  Remedial purpose means that its purpose is  to cure a racial imbalance that exists in the organization because of past discrimination.    A "narrowly tailored" plan is one that purports to accomplish the remedial purpose without unnecessarily trammeling the rights of non-minorities. 

2) Practices the employer has implemented to comply with an affirmative action plan should actually relate to the goals of the plan.  For example, if the plan calls for the employer to take steps to attain a racially diverse applicant pool, a practice that sets hiring goals or requires certain racial balance among the workforce may not be consistent with the plan.

3) Many organizations do not have a a formal affirmative action plan, but do have policies concerning diversity in the workplace.   An employer should evaluate whether the diversity goals are merely aspirational, or are actually relied upon in making employment decisions.   If achieving or maintaining diversity in the workforce is a reason for a particular employment decision, it may constitute evidence of race discrimination.

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Last week the Iowa Supreme Court issued a ruling in a pregnancy discrimination case that decided three issues significant to employers and employment litigators.  

The first issue in DeBoom v. Raining Rose, Inc. involved whether an employee must actually be pregnant at the time of a termination to be protected by the Iowa Civil Rights Act's prohibition against pregnancy discrimination.   The Plaintiff in DeBoom was terminated one week after returning from maternity leave, allegedly because of poor performance.  The Iowa Supreme Court held in a case of first impression that the ICRA's express protection of employees disabled by pregnancy extends to women "affected by pregnancy, childbirth, and other related conditions."  This includes women who have recently returned to the workplace after maternity leave.  In so ruling,  the Court followed the interpretation by many courts of the federal Pregnancy Discrimination Act (PDA), even though the language of the ICRA is different than that of the PDA.  The Court reasoned that such a broad interpretation was "necessary to effectuate the purpose of the statute." 

The crucial issue, therefore, is not whether the employee is pregnant at the time of the termination, but whether the employer was motivated by the fact of her pregnancy.  Interestingly, however, the Court cautioned that if the employer's reason for terminating plaintiff was because she decided after returning from leave to prioritize family over work, it would not constitute discrimination because of pregnancy under the ICRA.  According to the Court, "such a decision can be made by men as well as women and, therefore, is not based on the unique capacity of women to bear children so as to fall within the scope of Iowa's statute."   This is a notable distinction, especially given the fact that, under federal law, discrimination against caregivers is sometimes viewed as discrimination on the basis of sex.   (See this post for discussion of caregiver discrimination).  Employers should not interpret this cautionary note as giving them a free reign to take adverse action against new mothers returning from leave.

The second significant issue in DeBoom was whether a plaintiff is entitled to a "pretext" instruction under the ICRA.  Such an instruction tells the jury they may find that unlawful discrimination occurred if the plaintiff proves the employer's stated reason for the adverse action was not the real reason, but merely a pretext to hide discrimination.    The Court held that a pretext instruction "is required where, as here, a rational finder of fact could reasonably find the defendant's explanation false and could infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."

While the employer's proffered reason for an adverse action is always an important issue in employment litigation, this ruling makes it more likely courts will submit these claims to the jury, even if there is little evidence of discriminatory intent beyond the supposedly false reason.  

The third important ruling in DeBoom concerns whether the jury must find that the employer's unlawful reason was "a motivating factor" in the employment decision, or "a determining factor".   While on the surface these two terms are very similar, the key is how they are defined under Iowa law.    In cases where an employee alleges wrongful discharge against public policy, the Iowa Supreme Court requires that the wrongful reason be a "determining" factor in the discharge.    A "determining" factor is a reason that tips the scales decisively one way or the other.  However, most federal courts use the term "motivating" factor in discrimination claims, which is generally defined to mean the unlawful reason played a part in the decision, but was not necessarily the only reason.    The Iowa Supreme Court ruled that "motivating" factor is the correct standard by which to instruct the jury.  

One potential side effect of the Court's ruling on the "motivating" versus "determining" factor issue is that it will encourage age discrimination plaintiffs to file in State court under the ICRA, and avoid asserting a claim under the federal Age Discrimination in Employment Act (ADEA).  Because of the U.S. Supreme Court's decision in Gross v. FBL Financial Services (discussed in a previous post here), claims under the ADEA will no longer instruct on "a motivating factor".   Under the ADEA after Gross, plaintiffs must prove age was the determining factor in the adverse action, not merely a motivating factor.

The jury in DeBoom ruled in favor of the employer, but the Iowa Supreme Court reversed and remanded for a new trial based upon the faulty jury instructions.   It will be interesting to see if the new instructions change the result when the case is tried again.

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Late August means it's time for the Iowa State Fair, one of the Top 100 Events in North America, home of corn dogs, the butter cow, and over one million visitors.  One of the interesting side-shows at this year's fair involved the Des Moines Regional Transit Authority (DART), an atheist organization, and a Christian bus driver.  It all started when an organization billing itself as the "Iowa Atheists and Freethinkers" purchased advertising space on the side of buses to coincide with the Fair.  DART's advertising manager agreed to run the ads, but was later overruled by the Board of Directors, which was concerned about offending bus riders.   Even the Governor weighed in on the controversy.  DART changed its mind and decided to run the ads after the Iowa Civil Liberties Union promised to investigate whether the atheists' free speech rights had been violated.

Unfortunately for DART, the controversy was far from over.  When the ads were published, one of DART's Christian bus drivers refused to drive the bus assigned to her because it contained the atheists' ad, which offended her because of her religious beliefs.   DART promptly suspended the driver, and then gave her three options: 1) returning to her former position with the understanding that a refusal to drive whatever bus was assigned would result in termination; 2) transferring to a para-transit route, where buses do not contain as much advertising; 3) resigning her position.

As of this publication, there is no word on what the driver decided to do.   Regardless, this episode contains a lesson for Iowa employers: be careful when imposing discipline when it involves an employee's exercise of religion.   Employees have the right to a reasonable accommodation for their sincerely held religious beliefs.  That does not mean an employer is obligated to do whatever the employee demands, but managers should listen to the employee's concern, and make a genuine inquiry whether there is some reasonable accommodation that will permit the employee to practice her religion while at the same time resulting in minimal disruption of the business.  For more on this subject, see this post from a couple of weeks ago: Update: Religious Discrimination.

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Two recent cases out of the U.S. Court of Appeals for the Eighth Circuit (which includes Iowa, Nebraska, Minnesota, Missouri, Arkansas, and North and South Dakota) serve as important reminders that employers should be alert to potential claims of religious discrimination and religion based harassment occurring in their work places:

• On July 31, the EEOC announced that AT&T, Inc. paid $1.3 million to satisfy a judgment entered in favor of two employees who were terminated after they took time off work to attend an annual conference of Jehovah's Witnesses.    The judgment was entered after a jury trial in the U.S. District Court for the Eastern District of Arkansas, and was affirmed by the Eighth Circuit Court of Appeals. 

• On July 29, a panel of Eighth Circuit reversed a trial judge's ruling granting summary judgment to an employer in a religious harassment case.   The plaintiff in Winspear v. Community Development, Inc., alleged he was subject to a religiously based hostile work environment by his boss' wife, who also worked for the company as a receptionist.   The Court of Appeals held the trial judge failed to consider whether a hostile work environment was created by the wife's repeated comments that plaintiff's deceased brother was suffering in Hell, and that plaintiff needed to find God to avoid the same fate.   

Claims based upon an employee's religion are not as common as those based upon other protected characteristics, such as sex, race, age, or disability.  Nonetheless, EEOC statistics reflect an increasing number of charges alleging religious discrimination or harassment.  In response to this trend, the EEOC published the following documents to assist employers in evaluating their rights and obligations under Title VII's prohibition against discrimination on the basis of religion:

•  Questions and Answers: Religious Discrimination in the Workplace provides helpful information in an easy to follow question and answer format. 
•  Best Practices for Eradicating Religious Discrimination in the Workplace identifies practices for both employers and employees to reduce the probability of religious based conflict and charges of religious discrimination.  The "Best Practices" document discusses issues relating to hiring and discipline of employees without regard to religion, reasonable accommodation of employee religious practices, avoiding religion based harassment, and retaliation. 
• Questions and Answers about Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs was published to address the increasing number of claims since September 11, 2001 by employees who are or are perceived to fall within one of these groups.

Some important takeaways from these documents include:

• Employers should have a well publicized and consistently applied anti-harassment policy that specifically includes harassment on the basis of religion or religious practice, including a mechanism for making complaints, allowing for investigations, and preventing retaliation;

• Employers should permit non-disruptive and non-harassing religious expression among employees to the same extent other types of personal expression is allowed;

• Supervisors should be permitted to engage in religious expression, but they should avoid expressing themselves in a manner that a subordinate could perceive as coercive, even if not intended that way;

• Polices and practices concerning the reasonable accommodation of employee's religious practices should be developed and communicated to employees.  Such practices might cover scheduling, breaks for prayer, dress, and grooming; 

• When considering whether an employee's requested accommodation causes undue hardship, or whether a particular religious expression is disruptive, employers should gauge the actual hardship or disruption that will result, and not speculate about what may occur.   Managers should be flexible in exploring alternatives that will permit the employee's religious practice while also allowing the employer to operate its business.

Image: Joan of Arc (from Flickr)

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Between a busy trial schedule and the other distractions of summer, we have been a little delinquent in keeping you up to date during the past couple of weeks.  We apologize for the inactivity on the blog, as there have been many developments in the employment law world since our last posting at the end of June.   The following is a brief summary of four of the more interesting and important current events:

1.  Ricci v. DeStefano. 

The Supreme Court issued its opinion on June 29.   This is a significant case dealing with the sensitive and controversial issue of reverse discrimination.   The case is notable not only for the subject matter, but because Sonia Sotomayor, whose Senate confirmation hearings are now underway, was one of the judges on the Second Circuit Court of Appeals who decided the case below.  

The case was about firefighers in New Haven, Connecticut who applied to be on the promotion list for captain and lieutenant positions.   A candidate's rank on the list was determined by process that included written and oral exams.    After the testing process, only white and Hispanic candidates qualified for a promotion to captain, and only white candidates for lieutenant.   The City's Civil Service Board refused to certify the test results because it would result in no black candidates being eligible for promotion. 

The Ricci case presents a clash between two types of discrimination, disparate treatment and disparate impact.  Disparate treatment is intentional discrimination based upon race or some other legally protected classification.  Disparate impact, on the other hand, is not necessarily intentional discrimination, but occurs when job criteria that are neutral on their face have an adverse impact on certain groups.   In this case, the black firefighters contended the testing process was discriminatory because it resulted in no black candidates qualifying for the promotions list.     The City's defense in the lawsuit brought by the white firefighters was that it could not certify the list because if it did, it would be subject to disparate impact liability.   In other words, the City did not believe it could promote only white candidates because it would be sued by the non-white candidates who did not qualify for promotion.

The Supreme Court held it was unlawful for the City to refuse to certify the results of the promotional exam based solely upon the relative racial make-up of the candidates who qualified versus those who did not qualify.  The Court sympathzed with the City's position that it would be liable for disparate impact discrimination if the test results had been certified.  However, Justice Kennedy, writing for a 5-4 majority, held that, at least in this case, such concerns did not justify denying promotions to candiates who had the highest scores because no black candidates were in that group.   

Is is ever permissible to make an employment decision based upon an employee's race because of the fear of disparate impact liability to persons of another race?  The Court concluded such a decision would be permissible only if there is a  "strong basis in evidence" it would be subject to disparate impact liability.  In the Ricci case, the Court concluded, the evidence showed the City had taken great care to ensure its testing process was free from discriminatory impact and reasonably related to the jobs for which it tested.  Therefore, there was insufficient basis for the City to conclude its tests had an unlawful disparate impact.

For detailed discussion, analysis, and contrasting arguments on the Ricci case, I recommend the following posts:  First, for a local flavor, Connecticut Employment Law Blog provides a good summary of the lessons to be learned from the case.   Employee rights attorney Ellen Simon opines at Employee Rights Post that the Ricci decision was not only wrongly decided, but is bad for both employers and employees.  Finally, for an analysis without the rhetoric, try SCOTUSblog.

2.   Employers and Social Networking

Facebook, Linked In, and other social networking sites have exploded in popularity in recent years.  Are employers entitled to make employment decisions based upon information an employee posts on the internet outside of work time?  Should an employer allow or even encourage employees to use the social networking on the internet? 

For a detailed analysis of some of the issues surrounding social networking, I recommend the following:

• In "The Voice", a weekly publication of the Defense Research Institute, attorney Helen Adams writes about the employment implications of "Doocing", a new slang word to describe terminations based upon an employee's activities on the internet. 
• The Delaware Employment Law Blog discusses reasons employers should have a policy covering social networking sites.   
•   The National Law Journal reports that some management side lawyers have warned about the use of Linked In to make recommendations of employees, for fear it will be used against the employee in the event  of a termination.
• Locally, The Des Moines Register reported on the case of a police officer who was asked to resign because of photographs she posted on Myspace. 

Suffice it to say that social networking is not going away any time soon, and employers would be well advised to develop practices and policies for dealing with its impact on the workplace. 

3.  Al Franken Certified as the Winner of the Senate Race in Minnesota

This is imporant because Mr. Franken becomes the 60th Democratic Senator, giving the party a filibuster proof majority.   The Senate thus constituted is in a better position to pass EFCA, or the so-called "Employee Free Choice Act."  EFCA would have a substantial impact on labor law in the United States and present many challenges for employers.  I recommend the the blog at Laborpains.org to keep track of the latest developments on EFCA and other labor union matters.

4.  WARN Act

The WSJ Law Blog notes that litigation relating to layoffs is heating up, particularly under the heretofore seldom utilized WARN Act.  WARN requires employers under certain circumstances to provide at least 60 days notice of plant shutdowns or significant layoffs.   A violation means the employer has to pay wages to the laid off employees for the sixty period, plus other potential penalties.   However, the fact that the downturn occurred so swiftly and is protracted  may provide a defense to a WARN Act claims.

Stay Cool!

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