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

A recent study by University of Iowa economist John Solow found little evidence of racial discrimination in head coach hiring by National Football League Teams.   In 2003, the NFL instituted the "Rooney Rule" to try and increase the number of racial minorities who served as head coaches.  The rule required teams to interview minority candidates for head coaching and senior football operations opportunities.   Despite the league's effort to increase diversity in the head coaching ranks, some are critical that six years after its implementation, only six of the 32 NFL teams have minority coaches.  Seventy five percent of NFL players are minorities.

Nonetheless, Dr. Solow concluded that race is not an important factor in promotion decisions for head coaches.   Solow studied head coach hiring from 1970-2008, and noted that most vacancies were filled from the ranks of offensive or defensive coordinator positions.   He found that success as a coordinator was the most important factor in moving to the head coaching ranks.   According to Solow, the most effective means for the NFL to increase the number of minority head coaches would be to increase the number of minorities in the lower level coaching positions from which head coaches are ultimately drawn.   Solow contends that applying the Rooney Rule to these other coaching positions would be the best way to increase the number of minorities in the head coaching ranks.

"If the league introduced African-American coaches into the front of the pipeline instead of at the end, more of those coaches would have the experience teams are looking for and be more likely to be hired as head coaches," Solow said.

Solow's statement could be applied to virtually any workplace.  Some might call it simplistic, but it makes sense that providing people opportunities at the entry level is key to developing diversity throughout an organization.    Despite those who criticize the NFL because of the low number of minority head coaches, there are few organizations today as color blind as professional sports leagues.  There is virtually no other industry where minorities have been as successful.  If other workplaces were as color blind as the NFL, we wouldn't be so worried about diversity.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

"Is Summary Judgment in Employment Cases a Myth"?  So ask attorneys Teresa Ride Bult and Kate Summers in an excellent article published last month in Law 360. 

The authors contend it is becoming more difficult for employers to win on summary judgment, particularly in state court.   Nonetheless, they believe the benefits of filing a summary judgment still outweigh the cost.  The work that goes into a summary judgment will have to be done anyway as part of trial preparation.  Even if all claims are not dismissed, summary judgment can weed out some of the weaker claims, making the case simpler to try.  Finally, a motion for summary judgment forces plaintiffs to tip their hand about their theory of the case and the evidence they rely upon. 

I agree that the summary judgment is an important weapon in the defense lawyer's arsenal in an employment case.   We recently wrote about the chances of an employer winning at trial--and the statistics were not heartening.   On the other hand, a study of the federal courts published last year shows that summary judgment is granted to defendants in discrimination cases more than in any other type of civil case in the federal system.  Locally, anecdotal evidence suggests that summary judgments are granted in a very high percentage of cases in federal court s in Iowa.   The Eighth Circuit also has a reputation for being very "defendant friendly" in employment cases.   Almost all of the employment cases the Eighth Circuit decides are appeals of summary judgments, and most of the time the trial court's ruling is affirmed.  

Of course, it is a different story altogether in State Court in Iowa.   An employer's motion for summary judgment in State Court is denied more often than not.  So much so that many plaintiff's lawyers assert claims only under the Iowa Civil Rights Act so as to avoid having the case removed to federal court.  I attribute the difference in outcome to a couple of factors.  First, state court judges, particularly those in more rural areas, are not as familiar  with employment discrimination law.   Second, state court judges have less access to law clerks compared to their federal counterparts, and it is thus much more difficult to digest factually complex motions for summary judgment and conduct the intense legal research that is often required.   My cynical side says that summary judgments are sometimes denied because judges know the case is likely to be settled anyway, and it is not likely to ever reach the desk of an appellate court.

So, should employers file a motion for summary judgment in employment cases?  The following statement of attorneys Bult and Summers is a fairly good summary of my opinion on the subject:

Employment litigation can sometimes feel like pure, unadulterated blackmail, and the bleak news presented in this article about the state of summary judgment dismissals provides only adds to the arsenal in the war against employers.

But the reality is in employment litigation, a good offense is the best defense.

An employer who has proper policies and procedures in place, makes reasoned and fair decisions, and who makes significant efforts to follow the law will be a much better position to defend against employment litigation and will have a much better shot at being “that case” that even a state court judge will dismiss on summary judgment.

While it is true that even frivolous lawsuits will make it to court, an employer must then analyze how to contain its costs and minimize its risks.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Understandably, this is the most important question a client will ask his lawyer when deciding whether to settle a lawsuit or defend the case at trial.   It is also one of the most difficult things for lawyers to predict.   That's why jury verdict research is so valuable, and why this post at Manpower Employment Blawg is a must read for employers and HR professionals.    It turns out that 2009 was not a very good year at the courthouse for employers defending employment related lawsuits.  Here is a summary of the some of the jury verdict data:

• The median jury award in discrimination cases rose 16%, from $208,000 to $241,119.
• Employers won 39% of the time (or lost 61% of the time, depending upon your perspective).   In age cases, employers were successful only 33% of the time, and in disability cases, 52% of the time.
• Age discrimination claims resulted in the largest verdicts, followed by disability, sex, and race.
• Employers are generally better off in federal court: they won 43% of the time there, versus 37% of cases in state court. The median award was also lower in federal court ($164,925 vs. $270,000). Federal Court is also more favorable for employers because of the relatively high percentage of cases for which summary judgment is granted.
• The median settlement amount for all cases: $90,000, 20% higher than last year.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On October 30, the Iowa Civil Rights Commission (ICRC)  issued its annual report for 2009.   Once again this year, complaints of employment discrimination constituted the vast majority (85%) of the charges.   The non-employment charges (in the areas of credit, education, housing, and public accommodations) make up the remaining 15% of the charges.

The total number of complaints alleging employment discrimination increased by 13% over the prior year, from 1453 in 2008 to 1644 this year.   The rate of increase in charges filed with the ICRC is comparable to the increase in those filed with the federal EEOC.   Of course, most charges filed with the ICRC that alleged employment discrimination are also cross-filed with the EEOC. 

The category with the largest number of complaints was sex (717), followed by race, (694), disability (562) and age (368).   There were 55 claims of religious discrimination, and six alleging discrimination on the basis of sexual orientation or gender identity.   Despite the publicity relating to the Iowa Supreme Court's decision legalizing marriage among persons of the same sex, there was no increase in charges in the sexual orientation category. 

The largest increase in the type of claim was retaliation.   Retaliation claims increased 30%, from 435 last year to 567 this year.   Although retaliation is a separate category of complaint, charges alleging retaliation are frequently accompanied by a charge of discrimination.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Des Moines Register columnist Marc Hansen writes about an interview he had with Jack Gross, the plaintiff in Gross v. FBL Financial, Inc., decided by the U.S. Supreme Court last June.   Mr. Gross was in Washinton, DC last week to testify before the Senate Judiciary committee that is considering amendments to the ADEA that would effectively overrule the Gross decision.   

Lawyers and judges think and talk about cases in terms of how the "law" applies to the "facts."  It is easy to forget these controversies involve real people with interesting backgrounds, stories, and motives.   Any good trial lawyer knows the likelihood of success in a lawsuit often depends more on the people involved and how they present themselves, rather than obscure legal rules or abstract "facts."   

Jack Gross' case is now back in the Southern District of Iowa, waiting for a new trial.   The jury instructions will be slightly different this time around (assuming Congress has not changed the law by then).  It will be interesting to see if it makes any difference in the outcome. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

More signs this week that the federal government is ramping up enforcement of employment laws.  The Department of Justice Civil Rights Division is seeking a $22 million budget increase for 2010, and is seeking to hire 50 new attorneys.   Law Memo Employment Law Blog reports that the EEOC has been very active recently in filing lawsuits.   The Agency  filed 32 lawsuits against employers during one seven day period in September.  Add to that 13 new lawsuits filed or announced on September 29 alone.   The Department of Labor is in the process of hiring 250 new investigators to look for wage and hour violations, particularly in the areas of overtime requirements, minimum wage, and employee breaks.   If you have not done so already, now would be a good time to conduct an audit of your employment practices and procedures. 

This post on HR Daily Advisor offers practical advice on how to avoid retaliation claims.  The first rule: don't let managers or supervisors take adverse action against employees who have complained without first checking with HR.

Washington DC Employment Law Update reports that Senate Judiciary Committee Chairman Patrick Leahy (D, VT) announced his committee is going to hold a hearing to investigate whether the Supreme Court has been misinterpreting laws designed to protect workers from discrimination.  On the witness list, Jack Gross, the plaintiff from Des Moines in the case Gross v. FBL Financial Services, Inc.  (See our related post on this subject here, as well as this one from Workplace Prof Blog).   Gross held that an age discrimination plaintiff must prove that age was the "but-for" reason for the adverse employment action; in other words, the employment action would not have been taken "but-for" the employee's age.  Before Gross, most courts required the plaintiff to prove only that age was "a motivating factor".   Amending the ADEA to lower the burden of proof for employees may be added to Congress' list of pending employment legislation.

Are lawyers giving bad advice about the impact of new technology in the workplace?   In this post on the Fistful of Talent blog, Kris Dunn complains that lawyers too often advise clients only about the perils of social networking and other cutting edge communication tools.  She contends this type of legal advice only scares HR professionals away from modern technology, rather than empowering them to use it effectively.   Attorney Anthony Zaller of California Employment Law Report  proposes this solution: if you want practical legal advice about social networking technology, make sure your employment lawyer uses Facebook, LinkedIn or Twitter,  or at least uses a Blackberry or iPhone.   I'm not sure a lawyer's own use of social networking technology will allow them to give better advice on the subject;  but, the point is well taken that clients need solutions to the legal issues this technology presents, not merely warnings about the inevitable lawsuits.  

Next Friday (October 9) I will be presenting a talk entitled "the Brave New World of Employment Law: What's New in 2009 and What to Expect in the Year Ahead" at the 3rd Annual American Corporate Counsel Association (Iowa Chapter) Annual Seminar in Iowa City.  This has become a marquee event for corporate counsel in Iowa, and I look forward to seeing many of you there.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This post in HR Observations (Hat tip: Ohio Employer's Law Blog) explores whether obesity could be the next characteristic to become protected under the anti-discrimination laws.   A group called the "Obesity Action Coalition" complains that discrimination against obese people is widespread.  Employer concern about rising costs associated with employee health coverage, workers' compensation costs,  and an emphasis on employee wellness may also contribute to the perception among the overweight that they have been marginalized in the workplace.

Although obesity is not officially a protected class under the federal discrimination laws or Iowa Civil Rights Act, employers are wise to be alert to weight related conditions that might lead to discrimination claims.   Health problems associated with obesity may protect an employee under the recent amendments to the ADA.   To the extent that gender or age contribute to weight related health conditions, policies or practices that favor fit and healthy employees may adversely impact one gender or age group more than others.   Even an employer wellness program designed to combat obesity could potentially discriminate against those who do not benefit from it.    It remains to be seen whether the EEOC will address obesity in the revised ADA regulations, and whether the Courts are open to expansive interpretations that will, in effect, result in weight becoming a new protected class.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is an interesting debate occurring in the legal blogosphere concerning LinkedIn, a popular business social networking site.   It started with an article a couple of weeks ago in the National Law Journal, where management side lawyers were quoted giving warnings about the dangers of  using LinkedIn to provide recommendations to current or former employees.   The concern is that a terminated employee may use favorable recommendations on LinkedIn as evidence that the employer's stated reason for termination--poor performance--is merely a pretext for discrimination, retaliation, or harassment.

Two posts appearing yesterday take an opposing view.   Daniel Schwartz (Connecticut Employment Law Blog) and Molly DiBianca (Delaware Employment Law Blog) downplay the danger to employers of LinkedIn recommendations.  Dan contends the warnings of management side lawyers are overblown, while Molly argues that news stories such as appeared in the National Law Journal are simply propaganda.

With all due respect to my colleagues in Connecticut and Delaware, in my judgment, employers should be concerned about their managers communicating about an employee on LinkedIn.  It's easy to argue in the abstract that statements on social networking sites are no big deal, but as a practical matter, any communications concerning employee performance, regardless of the media, are potential evidence in a lawsuit.  The unfortunate reality is that many people, including managers or supervisors who probably should know better, tend to be careless when communicating through electronic media, whether that media is text messaging, e-mail, or social networking sites.   Employee lawsuits are a fact of life in today's world, but many of them go away, either through a relatively inexpensive settlement or a dismissal via summary judgment.  What most employers really fear is the suit that is not settled, survives summary judgment, and must be tried to a jury.   A careless recommendation on LinkedIn is just the sort of evidence that can generate a genuine factual dispute in a case and make it more risky and expensive than it otherwise would have been.

This is an important discussion because social networking remains a relatively new phenomenon that the law has not yet caught up with.    We welcome more comments and debate on this issue.

• Email This
• Print
• Comments (2)
• Trackbacks (1)
• Share Link

 The National Law Journal reports today that text messages are becoming a growing liability concern for employers.    Offensive and inappropriate texts are increasingly being used as evidence in sexual harassment cases.  According to the article, the main culprit is male bosses sending scandalous messages to female subordinates asking them on dates or making promises in return for sexual favors.    What used to be a "he said she said" case can now be proved with electronic evidence.

What is an employer to do?   First, it is important to note that a bona fide sexual harassment reporting procedure is still the best defense against these kinds of claims.   Once there is a report of harassment, it is important to conduct a thorough investigation, including obtaining copies of the offending texts in question.  Text messaging also raises e-discovery concerns.   Whether an employer has unfettered access to text messages may depend upon who owns or pays for the mobile phone where the texts were received or sent. 

[Hat Tip: Workplace Prof Blog]

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent study of Iowa employers revealed that 51 percent offered some type of health screening to their employees.  Many companies also offer other "wellness" benefits to encourage employees to exercise and adopt healthy lifestyles.   The wellness program of a prominent Des Moines employer was recently profiled in the Des Moines Register (link here). 

Company wellness programs present many benefits for employers and employees, including increased productivity and lower health costs.   Like other benefits, however, there are limitations and restrictions about what can be offered without running afoul of federal and state laws governing health insurance, benefit plans, and discrimination. 

First is the Health Insurance Portability and Accountability Act (HIPAA), which prohibits denying an employee eligibility or charging higher premiums to individuals based upon eight health factors, including health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability.   A summary of the Department of Labor's Guidelines concerning application of HIPAA to wellness programs is here.

In addition, to the extent a wellness program provides rewards to employees (such as reduced health insurance premiums, deductible waivers, etc.), the plan should  be carefully tailored so as to reward participation, and not results.   Some of the criteria for evaluating whether a wellness program is bona fide under the HIPAA regulations include the following:

1. The cost of the wellness program mustn't exceed 20% of the cost of coverage under the group health plan. When calculating the 20%, you must include all of the plan's wellness programs that require individuals to meet a health-related standard.
2. The program must be reasonably designed to promote health or prevent disease.
3. Individuals must have a chance to qualify for the reward at least once a year.
4. The reward must be available to all similarly situated individuals and must provide a reasonable alternative standard for obtaining the reward for individuals for whom it's unreasonably difficult to satisfy the standard because of a medical condition.
5. All group health plan materials that describe the wellness program must disclose the availability of a reasonable alternative standard.

Other laws that may impact wellness programs include the Employee Retirement Income and Security Act (ERISA), which governs employee benefit plans, and the Americans with Disabilities Act (ADA).   For example, the ADA prohibits an employer from inquiring about medical conditions unless the inquiry is job related and a business necessity.   Any information gathered in connection with a wellness program must be truly voluntary to meet ADA requirements, and must be done in a manner so as to preserve the confidentiality of the information and prevent it from being relied upon to make employment or benefit decisions.  Finally, employers are required to offer reasonable accommodation to employees who cannot participate in any aspect of a wellness program because of a disability.

As with many employment decisions, it is wise to consult counsel to ensure your company's wellness program complies with applicable laws and regulations.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Much ink has been spilled over the last week analyzing the background and record of Judge Sonia Sotomayor, the nominee to replace Justice David Souter on the United States Supreme Court.    Given that the Supreme Court's docket has included a large number of employment related cases in recent years, a record which is likely to continue given the many changes to the federal employment laws under the Obama administration, how will a Justice Sotomayor potentially affect the jurisprudence in this area?

Judge Sotomayor has served as a judge on the U.S. Court of Appeals for the Second Circuit since 1998, and before that was a U.S. District Court judge in New York.   In one of her most notable cases as a trial court judge, Judge Sotomayor issued an injunction which prevented the Major League Baseball owners from using replacement players during the 1995 season.   

More recently, Judge Sotomayor was part of a three judge panel of the Second Circuit that issued a controversial opinion in the case of Ricci v. DeStefano ,a case which ultimately was appealed to the U.S Supreme Court.    Ricci involves a claim of reverse discrimination by a group of firefighters in New Haven, Connecticut, seventeen of whom are white and one who is Hispanic.    Based upon the results of written and oral promotional exams, only white and Hispanic candidates qualified for promotion to the position of Captain, and only white candidates qualified for promotion to Lieutenant.   Because no black candidate had a high enough score to be considered for the available captain and lieutenant positions, the City's Civil Service Board refused to certify the results of the exam, which prevented the promotions from occurring.  The trial court found that the City's refusal to allow the promotions did not constitute race discrimination, and granted summary judgment to the City (a thorough discussion of the decision is reported at Connecticut Employment Law Blog). 

The three judge panel on which Judge Sotomayor sat issued a short opinion affirming the trial court, but did not analyze any of the substantive issues.    Notably, another judge on the Second Circuit was critical of the panel for failing to address the important constitutional claims at issue in the case, stating that "this perfunctory disposition rests uneasily with the weighty issues presented by this appeal."    At least one critic has opined that Judge Sotomayor's apparent refusal to weigh in on this important issue of civil rights law does not make her a jurist worthy of serious consideration for the Supreme Court. 

Judge Sotomayor certainly has a compelling personal story, and she may have empathy, but it remains to be seen whether she will make positive contributions to the development of employment law.   Stay tuned.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent post at Human Resources Executive Online, entitled "Warnings from the Top".  provides an excellent overview of some of the new challenges employers have been presented since the beginning of 2009.   "Like it or not" say the authors, changes are coming, and employers better be prepared.

According to several attorneys the authors interviewed, some of the most pressing new laws and regulations relate to the Lilly Ledbetter Fair Pay Act, the Employee Free Choice Act being debated in Congress, and Amendments to the ADA.    These new laws mean it is time to train--about labor relations issues, what managers can and cannot say about unions; about safety, and about reasonable accommodation.   Now is also a good time to conduct an audit of your company's human resources practices, especially wage and hour compliance issues and compensation practices.  

Iowa employers are not immune from these changes.  Indeed, as discussed in a prior post on Iowa Employment Law Blog, compensation fairness issues may be even more urgent in Iowa because the the State has enacted its own version of the Lilly Ledbetter Act.

We will continue to keep you posted on developments in these important areas of the law.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As of a couple of day ago, there were 43 reported cases of swine flu--what is now being called "H1N1"--in Iowa.   

Given the continued spread of this virus, employers would be wise to develop plans to deal with H1N1 issues that could affect their employees and their workplace.   The Des Moines Register published an article today  (link here) about the choice many employees make between staying home or going to work when they are sick.    The article suggests that employees who lack paid sick leave are more likely to show up at work when they are sick, thus raising the risk of infection by co-workers and customers.

What should an employer do to protect the health of its employees and customers, while at the same time making sure to comply with employment laws?  The first step is to be informed.  The website pandemicflu.gov provides lots of helpful information and tips to stay abreast of the virus and its spread.

In addition, the EEOC has recently published two articles to assist employers in dealing with H1N1 issues.  The first, ADA Compliant Employer Preparedness for the H1N1 Flu Virus provides guidance on dealing with employee absenteeism and infection control in ways the comply with the disability discrimination laws.    According to the EEOC publication, employers are permitted to gather personal information from employees in connection with pandemic preparation so long as the employer asks broad questions that are not limited to disability related inquiries.   The EEOC even provides a sample questionnaire that complies with the ADA.   In addition, employers may implement common sense infection control procedures without implicating the ADA.

The second EEOC document, entitled Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), cautions employers about national origin discrimination in light of the fact that the h1N1 virus is believed to have originated in Mexico.   The publication also provided helpful links concerning pre-employment physical exams and disability related questions to employees.

We will continue to keep you posted on developments in this area.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On April 28, 2009, Governor Culver signed into law Senate File 137, entitled an Act "Providing that Wage Discrimination is an Unfair Employment Practice under the Iowa Civil Rights Act and Providing an Enhanced Remedy.”   This law (available here) amends the Iowa Civil Rights Act to expressly provide that pay differentials among employees are unlawful if they are based upon the employee's age, sex, disability, and several other protected characteristics.   Local media coverage of Governor Culver's signing can be found here.

You might ask, isn't pay discrimination already unlawful under the Iowa Civil Rights Act?   The answer is yes, but this amendment appears to be an attempt to make Iowa law consistent with recently enacted federal legislation governing pay discrimination, known as the "Lilly Ledbetter Fair Pay Act of 2009", which was signed into law in January.  It also incorporates provisions of the federal Equal Pay Act, first enacted in 1963.

The law amends the Iowa Civil Rights Act, Iowa Code Chapter 216, in three significant ways:

First, it makes an unfair or discriminatory employment practice to pay an employee in a protected class at a rate less than the rate paid to other employees who are employed within the same establishment for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, which are performed under similar working conditions.  Protected classes under the law include age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability.

Second, it provides that an unfair or discriminatory practice occurs not only at the time a discriminatory pay decision is implemented, but also each time wages, benefits, or other compensation is paid that results in whole or in part from the discriminatory decision.

Third, it provides an “enhanced” remedy. That is, an employee is entitled to recover two times the wage differential paid to another employee compared to the complainant for the time period of the discrimination, or three times the differential in the case of willful violations.

Iowa Employer should take note of several importance aspects of this law that create potential risk and exposure to employee lawsuits:

First, these Amendments actually provide greater protection than Federal law, which applies only to employers with fifteen or more employees.  The Iowa Civil Rights Act applies if an employer has four or more employees (although family members are not considered employees for this purpose). 

Second, to determine whether pay is discriminatory, the law allows an employee's pay to be compared not only to others who have similar jobs, but to those whose job functions may be very different , but require "equal skill, effort, and responsibility", or are performed under "similar working conditions".  This provision should cause employers more than ever before to have detailed and accurate job descriptions.  To the extent pay is different among different job categories, employers should develop objective rationales for such differentials.

Third, the fact that each paycheck can constitute a discriminatory practice may lead to litigation over pay decisions that were made years or even decades ago, but which are discovered only recently. 

Finally, the enhanced remedy provides not only additional damages, but also applies to the entire time the employee has been discriminated against.   This is a greater protection than available under the federal law, which limits recovery of back wages to two years. 

Given the enhanced protection provided under the Iowa Civil Rights Act as compared to federal law, employers can expect claims under this law to be filed in State instead of Federal Court.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link

Employers should take note of a recent EEOC publication entitled "Employer Best Practices for Workers with Caregiving Responsibilities", available on the EEOC website, or by clicking here.   

Although an employee's status as a caregiver is not protected under any federal or Iowa law, the EEOC nonetheless takes the position that discrimination against such employees can constitute discrimination on the basis of characteristics that are legally protected, such as sex or disability.   EEOC "Best Practices" documents do not carry the force of law, but are intended to provide suggestions for practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.  Best practices are proactive measures that go beyond federal non-discrimination requirements.    As courts often defer to the EEOC's interpretation of the discrimination laws, employers should familiarize themselves with some of the EEOC's suggestions.

The EEOC recommends that employers develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.   The document states that an "effective" policy should include, among other things, the following:

• Definitions of relevant terms, including “caregiver” and “caregiving responsibilities.
  • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.
• Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:
  • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
  • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
  • assuming that male workers do not, or should not, have significant caregiving responsibilities;
  • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
  • assuming that female workers who are caregivers are less capable than other workers; and
  • assuming that pregnant workers are less reliable than other workers.
  •  
• Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:
  • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
  • making stereotypical comments about pregnant workers or female caregivers;
  • treating female workers without caregiving responsibilities more favorably than female caregivers;
  • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
  • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
  • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
  • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and
  • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 Proactive employers would do well to review their policies to take into consideration potential discrimination claims by employees with caregiver responsibilities.

• Email This
• Print
• Comments
• Trackbacks
• Share Link