An Uber Example of How NOT to Handle a Complaint of Sexual Harassment

By Kathleen Jennings (kjj@wimlaw.com)

Last week, Susan Fowler, a former Uber software engineer, published a blog post alleging she had been sexually harassed during her year working at the company. One of her allegations was that when she contacted human resources, she was told that the offender was a “high performer” and they did not feel “comfortable punishing him for what was probably just an innocent mistake on his part,” Fowler said.

That was the wrong response. Whether an employee accused of sexual harassment is a “high performer” is irrelevant to the employer’s duty to investigate the complaint and take remedial action. While an employer’s past work history and performance can be considered during the investigation, they cannot be used as an excuse for the company to refrain from punishing him or her for harassing conduct.

And that was not the only mistake that Uber made in responding to Ms. Fowler’s complaint. While trying to decide whether to stay on the project with the manager she had reported, Fowler wrote that one HR representative told her “it wouldn’t be retaliation if I received a negative review later [from the manager she reported] because I had been ‘given an option'” of leaving her team.

Wrong again. A company cannot retaliate against an employee who complains about harassment. That means the manager who is the subject of the complaint cannot give the complainant a bad review because she complained, regardless of whether the complainant was given the option of working elsewhere. If a complainant continues to work under the supervision of a manager or supervisor who was the subject of a complaint of sexual harassment, the best practice is to have a neutral third person—a higher level manager or human resource official—review any performance reviews or discipline issued by that manager or supervisor to ensure that it is not motivated by retaliation.

In response to these allegations by Ms. Fowler, Uber has been roundly criticized for its culture and apparent failure to take workplace harassment seriously. Uber CEO Travis Kalanick held a meeting with employees on February 21 and apologized for a lack of diversity in the company’s workforce and for not properly responding to employee complaints. Kalanick also announced in an email to employees February 20 that former U.S. Attorney General Eric Holder will be working with Uber to lead an investigation into Fowler’s allegations.

Practice Tip: While implementing a Policy Against Harassment is one important tool in preventing harassment in the workplace, that policy is meaningless if the company fails to hold employees accountable for violations of the policy.

Wimberly Lawson can review your company’s policy against harassment and conduct supervisory and employee training on harassment in the workplace. Please call us at (404) 365-0900 to discuss your needs.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Have You Audited Your I-9 Forms Lately?

By Kathleen Jennings kjj@wimlaw.com

The new administration has been very vocal about its desire to remove undocumented immigrants from the country. During the week of Feb. 6, ICE agents carried out raids in the Los Angeles, Chicago, Atlanta, San Antonio and New York City areas, arresting more than 680 immigrants. According to Homeland Security Secretary John Kelly, about 75 percent of those were “criminal aliens” who were convicted of various crimes. Nevertheless, many see this action as the beginning of more aggressive efforts to target undocumented immigrants. The Obama administration deported a record number of illegal immigrants, so an increase over those numbers would impact massive numbers of people– and their employers.

Increase in number of ICE personnel may lead to more I-9 workplace audits

President Trump’s executive order on interior immigration enforcement calls for 10,000 additional ICE agents. ICE, a component of the Department of Homeland Security, is charged with not only the removal of unlawful immigrants, but the enforcement of immigration laws through such actions as the inspection of an employer’s Form I-9s. If there were such an increase in ICE agents, as President Trump has proposed, there could be a corresponding increase in the number of employer inspections. Industries such as construction and agriculture may be hardest hit.

I-9 Basics

The law requires employers to complete an I-9 within 3 business days of the hiring of a new employee. The employer’s representative must physically examine the documentation presented by the individual establishing identity and employment eligibility and ensure that the documents presented appear to be genuine and to relate to the individual, and complete the employer’s portion of the form. The employer cannot tell the employee what documents to present and must accept the documents presented by the employee if the documents appear to relate to the individual presenting the document and are acceptable to evidence both identity and employment eligibility. An employer who hires an individual for employment for a duration of less than three business days must physically examine the documents and complete Section 2 of form I-9 at the time of the hire. Under some circumstances, an employer may accept a receipt for one of the acceptable documents instead of an original of the document, but the employer may not accept a receipt in lieu of the required document if the employment is for less than three business days. If the new hire has a temporary work authorization, the employer may not discriminate against the employee on that basis but must keep up with the expiration date and make sure the employee does not become unauthorized to work. In addition, the employer is responsible for retaining Forms I-9 and making those records available for inspection by authorized government officials (maintain I-9s three years after date of hire or one year after termination, whichever is longer). I-9s can be maintained electronically.

If an employer is selected for an immigration audit, the audit will include not only the checking of all I-9s, but also may (but not always) include checking of social security and/or alien registration numbers to determine whether they are mis-matches. Sometimes such audits of mis-matches will be done only on a random basis, and if the proportion of mis-matches is not high, no further review of mis-matches will be conducted. If large numbers of mis-matches are found, the next critical issue is what ICE will do about those mis-matches. Employers must take affirmative steps to resolve a discrepancy in social security mismatches, but it is possible that the new Administration will enact regulations that spell out in more detail what steps an employer must take.

Practice Tip: Now is the time for employers to audit their I-9 records for compliance, before ICE starts increasing employer inspections. Wimberly, Lawson, Steckel, Schneider & Stine, P.C. provides fixed fee I-9 audits. Please contact Jim Wimberly at (404) 365-0900 or jww@wimlaw.com to schedule one.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Does Your Company Have a Social Media Policy? A Cautionary Tale.

By Kathleen Jennings (kjj@wimlaw.com)

Harriet the Human Resources Manager is sitting at her desk at Acme Corporation on Monday morning enjoying a cup of coffee when the email arrives from Will E. Kyote. Harriet is aware that Will is a frequent purchaser of Acme’s products. Harriet figures his latest order was forwarded to her by mistake.

This email, however, is not an order. In it, Will states as follows: “I have attached a screenshot of a comment by your employee, Rhoda Runner, on a social media page of a local news station. I clicked on her picture, and the link showed her to be a supervisor at your company. I am disgusted and I will no longer do business with Acme.”

The screenshot shows a news story about immigration, and shows several comments, including one by Rhoda that states: “I am so tired of hearing the Mexicans speak Spanish at work all day. If they can’t speak English, they need to go back to where they came from!” Will has also sent a screenshot of Rhoda’s Facebook page which shows that she identifies herself as a supervisor at Acme.

To make Harriet’s morning worse, she sees that Acme’s President was copied on the email. Sure enough, the President calls Harriet and tells her, “We cannot allow our employees to represent our company with these kinds of statements. It is disrespectful to our employees. It is disrespectful to our customers. We have lost one customer already. Make sure it does not happen again.”

Harriet calls Rhoda to her office. Rhoda also invites Rhoda’s supervisor to the meeting as a witness. Harriet asks Rhoda if she posted the statement on a social media page. Rhoda admits that she did, adding, “I just got caught up in things. I probably should not have said it.” Harriett asks Rhoda if the difference in language prevents the Spanish-speaking workers from doing their jobs. Rhoda admits that it does not because there are several bilingual line leaders and supervisors available to translate.

Harriet shows Rhoda Acme’s Social Media policy, as well as a copy of Rhoda’s signed acknowledgement of receipt of the policy. “I’m sorry, Rhoda, but your statement is a clear violation of this policy. As a supervisor, you represent the company. Acme does not tolerate these kinds of statements. You are suspended without pay for 1 week, you are being demoted to a non-supervisory position and your pay will be reduced accordingly, and you will be required to attend diversity training. Any further incidents of this type will result in your immediate termination.”

Rhoda is stunned. “How can you do this; I didn’t say this at work?! I have a right to express my opinions on social media.”

Harriet responds: “Rhoda, the Company’s Social Media Policy clearly states that

All of Company’s policies, as well as the terms of any agreement between you and Company, apply to communications (“posts”) made on social media. This includes for example, policies regarding discrimination, sexual harassment, non-violence, confidentiality, use of Company’s electronic systems and use of company time, as well as contractual provisions regarding disclosure of confidential information and restricting competitive activities. Sexual harassment, confidential information and other terms defined by other policies and agreements between you and Company have the same meaning as in those policies and agreements. ”

“Rhoda, while you may have the ability to express your opinion publicly, when those opinions violate our discrimination or harassment policies, we have to take action. We do not tolerate those kinds of statements by any employee, and especially not by a supervisor. That kind of statement also can undermine your effectiveness as a supervisor of a diverse workforce.”

Thereafter, Rhoda sent an email to all company employees reminding them of Acme’s Social Media Policy as well as its EEO Policy and its Policy Against Harassment. She also sent an email to Will thanking him for his email and assuring him that Rhoda’s words did not reflect the views of Acme. Will responded shortly thereafter, thanking her for a prompt response to his concern.

The moral of the story: Can a private company like Acme really take action against an employee for making a statement on social media? Yes—a private company has a right—and a duty– to manage how its employees represent themselves and communicate on social media. The dissemination of a written social media policy puts employees on notice of the company’s expectations. A private employer can take action against an employee for making statements on social media that are contrary to the Company’s policies and values. The statements of supervisors and/or managers can be imputed to the Company and can be used against the Company in legal proceedings, so it is especially important for those persons to understand the parameters of the Company’s social media policy and the consequences of speech the Company deems improper or harmful.

If your company needs a Social Media policy, or wishes to update an existing policy, please contact one of the attorneys at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. for assistance.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Do You Want to Give the EEOC Input on its Proposed Enforcement Guidance on Workplace Harassment? You Have 40 More Days to Comment.


The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has extended for 40 days the public input period on its proposed enforcement guidance on unlawful workplace harassment. The proposed guidance is now open for public input until March 21, 2017.
This extension of time is an opportunity for businesses to try to shape the EEOC’s enforcement policy under the new administration, which many consider more “employer-friendly” than the previous administration.

The proposed guidance, which is the product of extensive research, analysis and deliberation, explains the legal standards applicable to claims of unlawful harassment under federal employment discrimination laws. The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age or genetic information. While EEOC guidance does not carry the force of law, it serves as a reference for agency staff, including during the investigation of discrimination charges.

Some of the provisions that are of concern to employers include a provision that states that using a pronoun inconsistent with a worker’s gender identity in an offensive or persistent manner can amount to sexual harassment, and a call for “civility” training, which may conflict with some mandates on employee free speech issued by the National Labor Relations Board.

Public input may be submitted online at this location on www.regulations.gov until midnight on March 21, 2017. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. All input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.


 

What Makes an Accommodation “Reasonable?”

By Kathleen Jennings (kjj@wimlaw.com)

When an employer has a disabled employee who requires an accommodation in order to perform the essential functions of his/her job, the challenge is to determine what type of accommodation is “reasonable” under the Americans With Disabilities Act (ADA). Reasonable to the employee? Reasonable to the employer? Reasonable to other employees? Are disabled employees entitled to special treatment?

When a disabled employee is seeking a job reassignment through a competitive hiring process, the answer to the last question is No, according to the Eleventh Circuit Court of Appeals.

As we stated in an earlier blog post, the ADA does not require an employer to provide an employee with the exact accommodation that he/she wants. In United States Equal Employment Opportunity Commission v. St. Joseph’s Hospital, 842 F.3d 1333 (11th Cir. 2016), the Eleventh Circuit Court of Appeals applied this rule in the context of employer hiring policies and held that the ADA’s reasonable accommodation requirement does not require reassignment without competition for, or preferential treatment of, the disabled.

Leokadia Bryk, a disabled nurse, sought a reasonable accommodation in the form of a job reassignment to another unit at St. Joseph’s Hospital because she required the use of a cane, which posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at St. Joseph’s Hospital, but was required to compete for them. She applied for three positions, but was not offered any of them because she was not considered the most qualified applicant. When Bryk did not obtain another Hospital position, the Hospital terminated her employment and the Equal Employment Opportunity Commission brought suit on her behalf. The case went to trial, resulting in a jury verdict in the Hospital’s favor. The EEOC appealed.

The Court noted that it is well-settled that employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies. Further, the Court held that the ADA does not require employers to ignore competitive hiring policies:

Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable “in the run of cases.” As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

In short, the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.

Practice Tip: While an employee with a disability is not entitled to special treatment when competing against other employees for a position, he or she is also protected from discrimination because he or she has a disability. It is important not to make assumptions or rely upon stereotypes about a disabled person’s ability or inability to do a particular job.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

EEOC FISCAL 2016 ENFORCEMENT AND LITIGATION DATA

By Kathleen Jennings kjj@wimlaw.com)

This week, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns for the 91,503 charges of workplace discrimination the agency received in fiscal year 2016. According to EEOC, this is the second year in a row that the number of charges filed with EEOC has increased.

Overall, EEOC claims to have resolved 97,443 charges in fiscal year 2016 and secured more than $482 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation. Keep in mind that some of these resolutions also involved private counsel, but the EEOC is taking credit for the resolution.

Once again, retaliation is the most frequent claim in EEOC charges. The charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)

[These percentages add up to more than 100 because some charges allege multiple bases.]

This is the first year that EEOC has included detailed information about LGBT charges in its year-end summary. EEOC resolved 1,650 charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with EEOC in fiscal year 2016. Additionally, the data show a steady increase in the four years the agency has been collecting LGBT charge data. From fiscal year 2013 through fiscal year 2016, nearly 4,000 charges were filed with EEOC by LGBT individuals alleging sex discrimination, and EEOC recovered $10.8 million for these individuals. The EEOC takes the position that Title VII of the 1964 Civil Rights Act prohibits such bias as forms of sex discrimination. It will be interesting to see whether the EEOC takes a less aggressive position on this issue under a new administration.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

No, the ADA Does Not Require an Employer to Allow an Employee to Wear Flip Flops to Work

By Kathleen Jennings (kjj@wimlaw.com)

The Americans With Disabilities Act (ADA) allows a person with a disability to request a reasonable accommodation from his/her employer that will allow him/her to perform his/her job. However, the ADA does not require an employer to give an employee the exact accommodation that the employee wants; rather, the ADA requires the employee and employer to work through an interactive process to reach a reasonable accommodation that meets the needs of both parties.

What happens when an employee is unreasonable? An example comes to us from beautiful Sedona, Arizona. (Steely-Judice v. Taylor Fine Art, LLC, No. CV-14-08238-PCT-GMS, D. Ariz. Jan. 09, 2017). Ms. Steely-Judice worked at the Taylor Gallery, an art gallery in Sedona, Arizona, as a sales consultant. Taylor Gallery employs sales consultants throughout the gallery, and expects these employees to have “great attitudes, be good team players, and have the desire to succeed.” Taylor Gallery also upholds a professional dress code among its employees, and specifically prohibits its employees from wearing “flip-flop or thong sandals” while working.

Ms. Steel-Judice suffered from back problems due to an injury. She found that changing her shoes throughout the day helped to alleviate her back pain. Steely-Judice switched between two shoes in particular; a pair of orthopedic Dansk clogs and a pair of sandals.

Ms. Steely-Judice lasted all of 4 days at the gallery. On her first day of work, she wore her clogs. On the second day, she started with the clogs and changed into the sandals. The gallery director and Steely-Judice’s supervisor, Ms. Krista Drake, informed her that the sandals did not comply with Taylor Gallery’s dress code, and that she could not wear them to work. Steely-Judice told Drake that she needed to switch between shoes to manage her pain. Drake told Steely-Judice that she would ask the owner, Michael Taylor, whether she could wear the sandals despite the fact that they violated the dress code. On the third day, Steely-Judice was informed that she could not wear the sandals during her shifts because they did not comply with the dress code. Michael Taylor discharged Steely-Judice on the morning of her fourth day.

Taylor Gallery asserted that it discharged Steely-Judice due to her allegedly combative personality. According to Drake, Steely-Judice was “angry, combative and pushy” during her shifts. Steely-Judice argued that she was discharged due to her disability and her resulting request for an accommodation to wear shoes that did not comply with the dress code.

The District Judge granted summary judgment in the employer’s favor, finding that Steely-Judice failed to present significant and substantial evidence to challenge Taylor Gallery’s nondiscriminatory rationale for discharging her. Furthermore, the Court found that Steely-Judice’s subjective belief that she was doing a good job was insufficient to challenge her employers’ rationale for dismissing her.

Practice tip: As the employer did in this case, sometimes it can be better for an employer to “cut its losses” and discharge an employee quickly when she clearly has a problem attitude. There are some people who are going to sue, no matter what happens. In those cases, the employer should carefully document the attitude or performance problems so that it can present actual evidence to support the termination decision when and if the problem employee files a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.