Although many employers use progressive discipline policies, I am typically not a big fan.   In theory progressive discipline seems like a good idea:  it allows an employee to learn from their mistakes.  It puts the employee on notice that further discipline is going to have more serious consequences.    It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.

On the other hand, progressive discipline limits an employer’s flexibility.   Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating.   In other cases, the circumstances may warrant giving an employee more chances that the policy allows.  In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.

Continue Reading Employer’s Consistent Use of Progressive Discipline Defeats Discrimination Claim

In the recent case of Jahnke v. Deere & Co. (May 18, 2018), the Iowa Supreme Court ruled that a Deere employee who was repatriated to the United States as discipline for engaging in sexual misconduct while on assignment at a Deere factory in China did not state a claim for discrimination under the Iowa Civil Rights Act (ICRA)

Jahnke sued Deere in Iowa State Court, alleging the decision to repatriate him from China to a lower paying job in Waterloo, Iowa was based on his age, sex, and national origin.    While on assignment as the manager of a Deere factory in China, Jahnke engaged in sexual relationships with two younger, Chinese women who were in his “span of control”, which violated Deere’s policies.   Jahnke claimed Deere violated the Iowa Civil Rights Act because his discipline was harsher than that imposed on the female employees with whom he had the relationships.

Continue Reading Iowa Civil Rights Act Protections Do Not Apply to Ex-Pat Employee

It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial.    In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.”   (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary).    With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.

Continue Reading Recent Ruling from Eighth Circuit Shows an Employer’s Shifting Reasons for Decision May Not Be Evidence of Pretext

As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases.   Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case.  These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.

Continue Reading Summary Judgement in Employment Discrimination Cases May Be Making a Comeback in Iowa State Court

Employers that accommodate employees’ temporary disabilities should consider extending the practice to nursing mothers returning to work following maternity leave.   That’s the lesson of a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit  (Hicks v. City of Tuscaloosa, Alabama, 11th Cir., 9/7/2017)    In Hicks, a City police department’s insistence that an officer return to the beat rather than to allowing her work a temporary desk job resulted in a substantial plaintiff verdict.

Continue Reading Court Affirms Six-Figure Verdict to Nursing Mother Who Quit Because of Employer’s Failure to Provide Suitable Breastfeeding Accommodation

It’s been a difficult three months for central Iowa employers.   May, June, and July each saw a million dollar plus plaintiff verdict in an employment discrimination lawsuit.    One such verdict in these parts is notable, but three in three months is unheard of until now.  Back in January, we noticed juries in other parts of the country had returned some substantial plaintiff verdicts, and wondered then whether more and larger plaintiff verdicts were becoming a trend.     It remains uncertain whether the recent Iowa verdicts are evidence of a continuing pattern, or if it was simply a coincidence these particular cases were tried in three consecutive months.   But, whether this is the new normal or not, these types of verdicts have a significant impact on how lawyers and clients perceive the risk of employment claims.  Perception effectively becomes reality when clients settle cases that otherwise might be tried, or pay more than they otherwise would, to avoid the risk of being a victim of a headline grabbing and ruinous jury verdict.

The first verdict was issued May 4.   The plaintiff was a former athletic administrator at the University of Iowa who alleged she was discriminated against on the basis of sex and sexual orientation, and was subject to retaliation when she was reassigned to a position outside the athletic department and then had her position eliminated.   Verdict:  $1.4 million, including past and future emotional distress of $1.056 million.

The second was returned June 18.   The plaintiff was the former communications director for the Iowa Republican Senate Caucus who alleged she was subject to years of sexual harassment and then terminated when she complained about it.  Verdict: $2.195 million, which consisted entirely of damages for past and future emotional distress.

The third was just a couple of weeks ago, on July 25.    The plaintiff was a 40 year employee of the Grinnell Regional Medical Center who claimed he was terminated because of age and disability.  Verdict:  $4.5 million, including $4.28 million in emotional distress.

What is most eye-opening about these verdicts is not necessarily the total dollar amount, but that the lion’s share of the damages awarded in all three was because of emotional distress.    In the suit against the Republican Caucus, there were no economic damages awarded at all; the verdict consisted entirely of damage for past and future emotional distress.   In the other two cases, the ratio of emotional distress to back pay was 3 to 1 (U of I Athletic Dept.) and 19 to 1 (Grinnell Medical Center).

What should we make of these stunning awards for emotional distress?    The value of discrimination cases used to be driven by hard numbers like lost wages or back pay.   That certainly made it easier to assess the risk of employment claims.  Back pay or other economic damage is fairly objective and calculable.  Emotional distress, on the other hand, is almost entirely subjective and quite unpredictable.   It is possible that increased emotional distress verdicts simply reflect the modern cultural attitude of greater sensitivity to emotional and mental distress resulting from traumatic events in life, and a willingness to put a dollar value on it.

Unfortunately, the knee jerk reaction among many is to panic and think runaway verdicts are more common than they really are.   We lawyers often contribute to the problem by using these big verdicts as examples of “what might happen to you” if you don’t follow the policies and practices we recommend in our client seminars.   Not that the standard advice is bad, but we should also not ignore the data that shows most employment discrimination cases that are tried result in an employer win.

The response I propose to these out-sized verdicts seems like common sense but is not very common:  employers should try more and settle fewer employment lawsuits.   So few cases are tried nowadays, we really don’t have a benchmark on how to reliably value the claims.   Instead, we look to the few outliers that are being tried and those verdicts are used to place settlement values on future cases.   Is this approach risky?  Sure.  Would you lose some cases?  Naturally.  Would it be expensive? Of course, at least in the short term.   But, over time, the defense bar would get better at responding to and countering claims of emotional damage.    Perhaps we would find out whether most of these cases are defensible like we think they are.    If we are right, it just might discourage the filing of cases just because the plaintiff expects to get a settlement.

 

Whether Title VII protects employees from discrimination based upon sexual orientation is one of the most contentious employment law issues being litigated in the federal courts today.    EEOC contends Title VII covers sexual orientation, and a handful of district courts have agreed.  But, as of today, every U.S. Court of Appeal to consider the question has ruled that sexual orientation is not a protected status under Title VII.

The Eleventh Circuit is the most recent to weigh in, with a new opinion issued March 10. (Evans v. Georgia Regional Hospital, No. 15-15234).    In a 2-1 ruling, the court held that a female security officer who alleged she was discriminated against because she was a lesbian could not sue for sex discrimination under Title VII.   District Court Judge Martinez, sitting by designation, wrote the opinion of the court, which is not particularly noteworthy and breaks no new ground in its analysis of the issue.   What makes this ruling interesting, however, is the other two judges on the panel wrote separate opinions: Judge Pryor a special concurrence, and Judge Rosenbaum a dissent.  Both the special concurrence and the dissent articulate in a fairly clear way the legal analysis supporting the competing arguments for and against extending Title VII coverage to include sexual orientation.   In so doing, these judges have drawn a map for other circuits and perhaps the Supreme Court to follow, regardless on which side those other courts will rule.

Approximately twenty one states, including Iowa, have amended their civil rights statutes to cover sexual orientation as a protected status.   The language of Title VII, on the other hand, remains essentially the same as when Congress passed the law in 1964.  It prohibits an employer from discrimination in employment because of a person’s “race, color, religion, sex, or national origin.”    Even though Congress has not amended Title VII to include sexual orientation as one of the protected statuses, proponents of broader coverage contend sexual orientation discrimination is a form of sex discrimination, and is therefore already covered under the law.

How does discrimination because of “sex” include “sexual orientation”?   The argument traces its origins to a 1989 Supreme Court decision, Price Waterhouse v. Hopkins.  The Supreme Court ruled Price Waterhouse violated Title VII when it refused to offer partnership to a female senior manager, based in part on the male partners’ beliefs that she was too aggressive and did not act sufficiently feminine.   Price Waterhouse established the rule that an employer may not make employment decisions based upon “sex stereotypes.”  (A more thorough discussion and analysis of the expanding notions of sex discrimination under Title VII is contained in my article published in the January 2017 edition of DRI’s For The Defense, “Pushing the Boundaries of Sex Discrimination Under Title VII: Does Discrimination “Because of Sex” Cover Gender Identity and Sexual Orientation”).

In her dissent in the Evans case, Judge Rosenbaum contends Price Waterhouse “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.   Before Price Waterhouse, Judge Rosenbaum noted that liability for sex stereotyping was “ascriptive”.  That means an employer could violate Title VII by ascribing certain characteristics to individual women based upon a stereotype, without considering whether any individual woman actually possessed the characteristics.   For example, an employer may assume women employees with young children have more family care obligations than men with young children, and as a result give more or better opportunities to men.

Price Waterhouse, however, recognized for the first time a form of what the judge calls “prescriptive” stereotyping.  Judge Rosenbaum explained that, under the prescriptive type, Title VII imposes liability if an employee does not satisfy the discriminator’s stereotyped “prescription” of “what the employee of that protected group should be or how the employee should act.” (emphasis added).   Unlike ascriptive,which attributes stereotyped characteristics to a female employee which she may or may not possess, prescriptive stereotyping treats the female employee less favorably because she fails to conform to the group’s prescribed stereotype.

As it relates to sexual orientation, Judge Rosenbaum contends one of the prescribed stereotypes of a woman is that she is sexually attracted only to men.   Therefore, if an employer terminates a lesbian because she is sexually attracted to women, the employer has acted based upon her failing to conform to the prescribed gender stereotype.  In this view, sexual orientation discrimination is by definition discrimination based upon a gender stereotype, which under Price Waterhouse is discrimination based upon sex.

Not surprisingly, Judge Pryor holds a more limited view of the doctrine of gender non-conformity.    The concurrence distinguishes between an employee’s gender-based “behavior” and her gender “status”.   Claims based upon gender non-conformity focus only on whether the employee’s behavior failed to conform to how the employer believes someone of that gender should act.  Judge Pryor rejects the dissent’s view that Title VII liability exists when an employee’s status deviates from the stereotype of what a person should be.     A person who experiences sexual orientation discrimination may also experience discrimination based upon the failure to conform to a gender stereotype.  But, it is also true one can occur without the other, and as such the concepts must be treated as legally distinct.    To treat the concepts as equivalent, Judge Pryor argues, imposes a false stereotype on gay individuals; namely, that their behavior always deviates from a certain prescribed gender stereotype.

Judge Pryor also rejects the dissent’s view that gender non-conformity, in and of itself, results in Title VII liability.    In the concurrence’s view, gender non-conformity under Price Waterhouse is not a revolutionary new doctrine, but is simply an evidentiary approach to proving sex discrimination.  In other words, an employer’s reliance on gender stereotypes is evidence the employer holds males and females to different standards of behavior.   Discrimination based upon gender non-conforming behavior is used as a proxy for discrimination because of sex.   But, a Title VII plaintiff must always prove that one of the enumerated statuses, in this case sex, is the basis for the employment decision.   Sexual orientation is not a protected status under Title VII; therefore, sexual orientation alone, without evidence the person’s behavior failed to conform to gender stereotypes, does not result in liability.

The competing approaches of the concurrence and dissent are ultimately based competing judicial philosophies.  Specifically, is establishing a new protected status under Title VII the role of Congress or the Courts?   Judge Pryor contends that, because Congress has not made sexual orientation a protected class, the arguments the dissent makes should be made to Congress and not the court.   Judge Rosenbaum disagrees.  During the fifty years since Title VII was enacted, the courts have expanded the meaning of discrimination because of sex more broadly that the law’s sponsors probably intended.  Based on this view, extending its meaning to cover sexual orientation is the next logical step.

The Eleventh Circuit’s opinion is not the last word on this subject.  There are similar cases pending in the Second and Seventh Circuits, and it is likely those courts will issue opinions later this year.  As Congress is not likely to amend Title VII any time soon, there is little doubt the Supreme Court will be asked to take up this issue soon.

It’s an all too common situation: an employee’s medical condition results in permanent restrictions that prevent the employee from performing essential job functions that she used to be able to do.   It is not reasonable to modify the job so the employee can keep the position.   There is a vacancy in another department for which the employee is qualified, and she wants the job.  But, the employer has another candidate who is more qualified for the vacant position, but does not have a disability.    Does the ADA require the employer to reassign the employee with a disability in favor of hiring someone else more qualified?

What Does the Law Require?

In its published Enforcement Guidance, EEOC takes the position that the ADA requires the employer to do just that.    But, in a recent opinion, the U.S. Court of Appeals for the Eleventh Circuit rejected the EEOC’s position.  (EEOC v. St. Joseph’s Hospital, Inc., 11th Cir. 12/7/2016).     The Court ruled the ADA indexdoes not require non-competitive reassignment as a reasonable accommodation for a disability.  In other words, it is legal to choose a more qualified, non-disabled employee over a less qualified employee with a disability.   The Eleventh Circuit (which covers Alabama, Florida, and Georgia) cited previous opinions from courts in the Fifth and Eighth Circuits (which includes Iowa) that already followed this rule.

In theory the rule is simple, but like many decisions involving the employment discrimination laws, it is more complicated in practice.    The EEOC v. St. Joseph’s Hospital case shows why.  The plaintiff was a nurse who had worked various jobs in the psychiatric unit for more than 20 years.    She developed back pain from spinal stenosis, which ultimately made it difficult for her to walk more than short distances without stopping.  The Plaintiff obtained a doctor’s note recommending she use a cane, which would provide support and allow her to walk longer distances.  But, the hospital was concerned the cane presented a safety risk in the psychiatric unit because patients could use it as a weapon.

Despite the doctor’s recommendation, the hospital told the Plaintiff she could no longer use the cane because of the safety risk.     Rather than immediately terminate her employment, the hospital offered Plaintiff 30 days to apply for other, open positions.    Technically, Plaintiff was not eligible for a transfer because she had been in her existing position for less than six months and was working under a final written warning.   But, the hospital waived those requirements as an accommodation.

The Plaintiff applied for three other jobs.   The hospital hired other, non-disabled candidates for two of them.  The third job was not actually available and was posted in error.    In the end, because plaintiff was not able to find another position, she was terminated.

Here is where it got complicated.  Even though the court ruled the hospital was not required by law to favor Plaintiff over other more qualified candidates, the question of who was the more qualified candidate was left for the jury to resolve.   The jury found the hospital failed to provide a reasonable accommodation for the Plaintiff by not reassigning her to one of the jobs for which she applied.     The hospital still won the case because the jury also concluded the hospital made good faith efforts to find a reasonable accommodation.  But, it is important to note the good faith defense eliminated the liability in this case because of some technical issues relating to the form of the jury instructions.     An employer’s good faith defense in most cases will protect only from damages, but not equitable relief or attorney’s fees.

What Should Employers Do?

The good news is, the the St. Joseph’s case reaffirms principle that an employer may hire the best candidate for the position, with or without a disability.  On the other hand, it remains a significant litigation risk to fill a vacant position with someone other than an employee with a disability, when the disabled employee will be terminated if not selected.   This is especially true for long term employees.   There is a very good chance a jury will be second guess the employer’s decision about which candidate is really the most qualified.

There are a number of policies or practices employers should consider that will make these types of  claims more defensible:  1)  employers should have a stated policy or demonstrated practice of hiring the best candidate for the job;  2) the stated qualifications for a position should match as much as possible the actual job duties; 3) the stated qualifications should emphasize criteria that are more objective (e.g., education, years of experience); 4)  subjective factors, such as the “right fit,” positive attitude, etc. are relevant but should be subordinate to objective criteria  4) identify and document the specific reasons the chosen candidate is more qualified than other candidates, especially if it is not obvious based upon the objective criteria.

Image Credit: from Google, Creative Commons license, Handicapped sign.

How to best accommodate pregnant employees is a frequent challenge Iowa employers face.    Pregnant employees may be entitled to protection under the laws prohibiting discrimination on the basis of pregnancy, as well as those requiring equal treatment based upon gender and disability.  Many employers have tried to walk this fine line with policies that allow for accommodation of a temporary disability only if it is the result of an on-the-job injury.   For non-worked related temporary disabilities (which pregnancy presumably is almost all the time), no accommodation is offered.

The theory behind such policies is that it treats similarly situated employees equally, regardless of gender or the nature of the temporary disability.   The distinction is drawn between work and non-work causes of the temporary disability.   The rationale for treating on-the-job injuries differently is that the workers’ compensation law provides an incentive to return injured workers to work as soon as possible, indexso as to avoid paying benefits for temporary total disability.

Until about the last year or so, this was a workable policy for an employer to have.   But, two cases decided last year, one by the U.S. Supreme Court (Young v. UPS)  and one by the Iowa Supreme Court (McQuistion v. City of Clinton) should cause employers to re-visit and possibly change their policies governing temporary disabilities and pregnancy accommodations.

Both cases dealt with employer policies of the type described here.  That is, accommodation was provided for some temporary disabilities, but not others, pregnancy being within those that were not subject to accommodation.   Although the U.S. Supreme Court addressed federal law and the Iowa Supreme Court Iowa law, the practical result from both opinions is the same:  this type of policy is presumed to violate the law against pregnancy discrimination.   The employer can overcome this presumption if it can show the legitimate reason underlying the policy is sufficiently strong to justify the burden it places on pregnant employees.   But, if the practical effect of the employer’s policy is to accommodate a large percentage of non-pregnant while a large percentage on pregnant employees are not accommodated, it will be difficult for the employer to carry its burden.    In the end, a jury will get to decide whether your policy is justified or creates an unreasonable burden.

The best way to avoid litigation is to change the policy that automatically results in pregnancy not being accommodated.   Each and every condition that results in a disability should be evaluated on its own merits to determine whether it can be accommodated.   While this may create more burdens for the employer each time you have to address a pregnancy related request for accommodation, it is more likely to keep you from being sued.

 

A federal district court in Michigan recently granted summary judgment for the plaintiff, (you read that correctly), ruling that the employer was liable for disability discrimination as a matter of law. (Lafata v. Dearborn Heights Sch. Dist. No.7 (E.D. Mich. 12/11/2013)).   A plaintiff hardly ever files for summary judgment in an employment case, let alone wins the motion. So what happened here?

The Plaintiff applied for a position as a Plant Engineer with the Defendant School District.   For ten years prior to applying for the job, Plaintiff worked as a building supervisor at a community center. In that job, he was responsible for complete maintenance, inside and outside the building, minor plumbing and electrical work, roof repairs, and all tasks associated with set up and care of the community pool and ice skating rink.   He regularly used ladders and carried objected weighing more than forty pounds.

The School District offered the Plant Engineer position to Plaintiff, conditioned upon a physical exam showing he could perform the essential functions of the job.   The job description for the position was very general, and did not identify specific tasks or physical demands. The physician who did the pre-employment physical diagnosed the Plaintiff with Charcot Marie Tooth syndrome, a genetic disorder that causes muscle deterioration and gradual loss of strength. But, the doctor did not ask any questions about the Plaintiff’s physical symptoms or his work history. The doctor expressed concerns about Plaintiff using a ladder because he could not “purposely dorsi-flex his foot up or down as he might to have to maneuver while climbing on a ladder."   He also said a forty pound lifting restrictions was a “fair number” based upon his estimation of Plaintiff’s strength, which he assessed by watching Plaintiff climb onto the examination table.

The doctor had a telephone conversation with the Assistant to the Assistant Superintendent, during which he verbally told her about his findings and restrictions.    The Assistant shared her notes of the telephone conversation with her boss (the Assistant Superintendent) and the Director of Operations. They decided, without any further information or documentation, to revoke Plaintiff’s conditional job offer. The reason: Plaintiff could not perform the essential functions of the job. They testified decision was “somewhat automatic”, based upon the restriction against ladders and lifting more than forty pounds.   They likened the Plaintiff’s physical restrictions to a an applicant who has a felony history—it disqualified him in and of itself.

The School District lost this case at the summary judgment stage for two reasons.   First, the information it relied upon about the Plaintiff’s restrictions was woefully inadequate.   District personnel took everything the doctor told them at face value, without having any information about the nature and extent of the doctor’s exam or other information the doctor relied upon.   Second, after learning about the restrictions, the District made no effort to dialogue with the Plaintiff about potential reasonable accommodations. If they had simply talked to the Plaintiff, they may have learned more about the limitations of the doctor’s opinion and perhaps could have developed a solution that would have allowed Plaintiff to do the job while also dealing with any of the medical concerns.

Takeaway: employers cannot farm out to medical professionals their obligation to make an individual assessment of an applicant’s ability to perform the essential functions of a job.   While a physician’s opinion is often essential, in and of itself it does not answer the questions about qualifications or reasonable accommodation.  Nor does it relieve the employer of its obligation to engage in the interactive process.