Dance Like Everyone Is Watching—And Taking a Video

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s holiday party season, so it is time for our annual reminder that what happens at the company holiday does not stay at the company holiday; rather, it may end up in an EEOC Charge or the statement of facts in a lawsuit if you are not careful.

It is easy to forget that the company holiday is an extension of the workplace because people may be all dressed up and partaking of adult beverages. Maybe there is even some music and dancing. Nevertheless, it is important for everyone, and especially your managers and supervisors, to remember that they must conduct themselves professionally at these functions. Any harassment directed at an employee at a company function can be actionable.

And they need to remember this: everyone at the party will have a camera on his or her person. At the first sign of any inappropriate behavior, you can count on at least one partygoer to whip out a smartphone and take a picture or video. Not only will this be embarrassing, it will be evidence. So dance like everyone is watching you—because they are!

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

©2019 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 Know What Your Managers Are Saying to Job Applicants?

By Kathleen J. Jennings (kjj@wimlaw.com)

The EEOC announced this week that the owner-operator of a Georgia Dollar General store will pay $70,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the EEOC. This claim arose out of comment that a supervisor made to an applicant for a job. According to the EEOC’s lawsuit, on or about Sept. 7, 2015, Terri Mosley applied for a sales associate position at a Portal, Ga., Dollar General store, where she was a frequent shopper. When Mosley appeared for an interview, the store manager refused to interview her, stating, “I didn’t know it was you,” and told Mosley that she could not work at Dollar General “with that arm.” Mosley’s left arm had been injured in an automobile accident two years earlier.

What did the manager do wrong? An employer cannot reject an applicant who has (or appears to have) a disability without making a determination as to whether the applicant can perform the essential duties of the job applied for, with or without reasonable accommodation. A hiring manager cannot simply rely on presumptions or stereotypes about what a disabled applicant can and cannot do.

The Americans With Disabilities Act (ADA) places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.

For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Pro Tip: All managers that participate in the hiring process should be trained as to what they can ask applicants and how to lawfully handle disabled applicants. Ideally, there should be a company Human Resources professional available to provide guidance or answer questions about specific situations.

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

©2019 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.

 

How To Undermine a Termination Decision With An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

Today’s “email fail” comes to us from a group of physicians in Tennessee. (Babb v. Maryville Anesthesiologists , 6th Cir., No. 19-05148, 11/6/19). Paula Babb is a Certified Registered Nurse Anesthetist (“CRNA”) who had practiced anesthesiology for over a decade. In June 2015, Babb began working as a CRNA at Maryville Anesthesiologists, P.C. Babb also had a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She informed her bosses of her condition but assured them that it would not affect her ability to do her job. Her bosses were concerned. The head physician asked Babb if she had disability insurance.

Thereafter, Babb would ask other CRNAs and nurses for assistance in reading charts from time to time. Some of those folks reported these incidents back to the Babb’s bosses.

In January 2016, Babb was terminated due to two clinical errors that she was accused of making in October 2015 and January 2016. When communicating its termination decision to Babb, her employer focused exclusively on the clinical errors, and made no mention of Babb’s vision. So far, so good.

However, Babb never saw the termination coming because no one at the practice had criticized her anesthesiology techniques prior to her termination.

Even worse, after Babb was terminated, one of Babb’s fellow CRNAs sent out an email to all Maryville CRNAs that basically said that Babb was fired due her eyesight and “some other issues.” This email was written at the direction of one of the practice’s doctors (who later apparently tried to distance himself from it, unsuccessfully).

The District Court granted the employer’s motion for summary judgment, but the Sixth Circuit Court of Appeals reversed that decision. The Sixth Circuit found two particular fact disputes that precluded summary judgment.

First, there was a factual dispute as to the reasonableness of Maryville’s decision to base Babb’s termination on the two “clinical errors.” Babb had an expert witness who gave an opinion that Babb acted reasonably in the two incidents, which conflicted with the doctors’ assertion that Babb committed critical errors. It probably did not help matters that the doctors had not written Babb up for these or any other errors prior to terminating her.

Second, there was a factual dispute as to whether those clinical errors “actually motivated” Maryville to fire Babb. Here is where the Court pointed to the email sent just hours after Babb’s termination essentially stating that Maryville was firing Babb because of her impaired vision. Indeed, the Court stated that “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

The moral of this story? Never let an employee send out an email to your other employees discussing the reasons for a former employee’s termination. Moreover, managers and supervisors should not discuss the reasons for an employee’s termination with anyone who does not have an absolute need to know (such as your HR Manager).

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

©2019 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.

30 Years Ago, the U.S. Supreme Court Told Us That Gender Stereotyping is a Form of Sex Discrimination. So It’s Not a Good Idea to Conduct Employee Training That Reinforces Gender Stereotypes.

 

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Huffington Post ran a story about a 2018 leadership training program for female executives at Ernst & Young, one of the largest accounting firms in the world. Apparently, whoever designed this training is completely unaware of U.S. Supreme Court precedent dating back to 1989, namely, the landmark case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ms. Hopkins was denied a partnership in the accounting firm despite her professional accomplishments. She was told that in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” (490 U.S. 228, 235). In other words, act more like a stereotypical woman.

The Supreme Court, in a plurality opinion, held that sex stereotyping is a form of discrimination on the basis of sex under Title VII. To that end, Justice Brennan stated that:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'” (emphasis added)(citations omitted).

Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989). [Note that this decision is a foundation of the argument that Title VII covers discrimination against gay and transgender employees.]

Yet, here we are 30 years later, and here are examples of the “advice” given to the Ernst & Young female executives:

  • Be “polished,” have a “good haircut, manicured nails, well-cut attire that complements your body type”. But then, a warning: “Don’t flaunt your body ― sexuality scrambles the mind (for men and women).”
  • In the list of “Invisible Rules” for men and women: women often “speak briefly” and “often ramble and miss the point” in meetings. By comparison, a man will “speak at length ― because he really believes in his idea.” Women don’t interrupt effectively like men. Women “wait their turn (that never comes) and raise their hands.”
  • Women were advised not to directly confront men in meetings, because men perceive this as threatening. (Women do not.) Meet before (or after) the meeting instead.
  • If a woman is having a conversation with a man, she should cross her legs and sit at an angle to him. She should not talk to a man face-to-face. Men see that as threatening.
  • Women should not be too aggressive or outspoken.
  • And my personal favorite: Women were also told that their brains are smaller than men’s brains, and that women’s brains absorb information like pancakes soak up syrup so it’s hard for them to focus. Men’s brains are more like waffles. They’re better able to focus because the information collects in each little waffle square.

And if it wasn’t clear enough that women needed to conform to certain gender stereotypes, before the workshop, women were also given a “Masculine/Feminine Score Sheet,” which had them rate their adherence to stereotypical masculine and feminine characteristics both on the job and outside the office. The so-called masculine traits included “Acts as a Leader,” “Aggressive,” “Ambitious,” “Analytical,” “Has Leadership Abilities,” “Strong Personality” and “Willing to Take a Stand.” The so-called feminine traits included “Affectionate,” “Cheerful,” “Childlike,” “Compassionate,” “Gullible,” “Loves Children” and “Yielding.” None of the feminine traits involved leadership ― ostensibly a focus of the training.

Needless to say, these kinds of messages are exactly what the Supreme Court characterized as discrimination on the basis of sex. In 1989.

Pro Tip: if a company wants to provide advice and training to employees on how to climb the corporate ladder, the better approach is focus on the types of skills and abilities that will lead to success, without attributing them to a particular gender. The same approach should be used in hiring, evaluations, and promotions. And most important–have a competent employment lawyer review your materials. Otherwise, it is probable that your training materials are going to be Exhibit 1 at the trial of a discrimination case.

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

©2019 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.

 

 

 

Nobody Likes a Liar

By Kathleen J. Jennings (kjj@wimlaw.com)

The FMLA is one of those employment statutes that can give companies all sorts of headaches, and one of the biggest headaches can come from managing intermittent FMLA leave. So the termination of an employee in Alabama who got caught abusing intermittent FMLA (for migraine headaches) was probably satisfying on some level to his former employer. (Prichard v. Hyundai Motor Mfg. of Ala., LLC , M.D. Ala., No. 2:18-cv-00556, 10/7/19).

Tommy Prichard worked for Hyundai Motors in Montgomery, Alabama. Prichard was diagnosed with migraine headaches, and by 2013, he was being treated by a physician for his migraines. When Prichard had a migraine, he was unable to work and became bedbound. As a result, Prichard sought intermittent FMLA leave in 2013. Prichard was approved for intermittent FMLA leave and was entitled to take such leave as long as he did it honestly and with integrity and gave proper notification of his leave in accordance with Hyundai’s policies. Prichard renewed his FMLA certification every six months as required, and though the exact wording in the certifications varied slightly, Prichard’s physician generally certified that “[o]n the days [Prichard’s] Migraine HA’s flare [sic] he will be unable to work. He is bed bound unable to function.”

Then Hyundai noticed a pattern in which Prichard often took FMLA leave on Fridays before non-production days. So Hyundai decided to hire a private investigator to investigate and surveil Prichard’s use of FMLA leave. The private investigator observed that Pritchard left his home and stayed out most of the day on a day that he had called out because he had a migraine. (Remember—the migraines made him bed bound and unable to function). When confronted with the evidence, Pritchard became defensive and basically told his employer that it was none of their business what he was doing that day. Not surprisingly, Pritchard was terminated.

Pritchard sued his employer and alleged that he has been terminated in retaliation for using FMLA leave. The U.S. District Court for the Middle District of Alabama granted summary judgment to the employer. Why? Because the employer articulated a legitimate, non-retaliatory reason for Pritchard’s termination: Prichard was terminated because Hyundai had a good faith belief that Prichard misused FMLA leave (based on the pattern of missed Fridays and the private investigator’s report), and Pritchard was unable to show that this reason was a pretext for discrimination.

The lesson for employers is this: if you have a good faith belief that an employee is abusing intermittent FMLA (or any other policy or benefit), you can conduct a necessary investigation to determine whether there is, in fact, abuse. Indeed, the Pritchard decision, the Court noted that “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.” However, employers need to be consistent in how and why they conduct such investigations. Furthermore, the use of a qualified and competent third party to conduct the investigation can provide compelling evidence of the misconduct, if discovered.

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

©2019 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.

 

 


 

The Supremes Are Back!

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s the first Monday in October, and that means that the U.S. Supreme Court starts a new term. One of the major issues before the court involves the question of whether gay and transgender employees are protected from workplace discrimination by Title VII of the Civil Rights Act of 1964, as amended. In fact, three cases (two of them out of Georgia) will be argued before the Court on Tuesday of this week. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, deal with the issue of whether sexual orientation is protected by Title VII, and the third case, R.G. & G.R. Harris Funeral Home v. EEOC, deals with the issue of whether gender identity is protected by Title VII.

Most observers predict that a majority of the current conservative majority Supreme Court will rule that sexual orientation and gender identity are not protected by Title VII. However, keep in mind that even if such discrimination is not prohibited by federal law, it may be prohibited by state law; 20 states and Washington, D.C. currently have laws in effect that ban employment discrimination based on sexual orientation and gender identity. Additionally, federal executive orders also ban federal agencies and contractors from discriminating against LGBT workers.

We’ll provide an update when the Supreme Court issues its decisions.

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

©2019 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.

 

 

The New Overtime Rule is Here!

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Department of Labor announced the new Final Overtime Rule that raises the salaried exemption threshold. As you may recall, the Obama administration tried to raise the salary threshold for the overtime exemption for executive, administrative, and professional employees from $23,660/year ($455/week) to $47,892/year ($921/week). Employers were not pleased with an increase that large, and they fought it in the courts. The Obama overtime rule was eventually enjoined, then invalidated, and now the new administration has made the decision to increase the salary threshold, albeit by a smaller amount. Specifically, in the final rule announced today, the DOL is:

•    raising the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);

•    raising the total annual compensation level for “highly compensated employees (HCE)” from the currently-enforced level of $100,000 to $107,432 per year;

•    allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices; and

•    revising the special salary levels for workers in U.S. territories and in the motion picture industry.

The DOL projects that this new rule will make 1.3 million more American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA).

The final rule will be effective on January 1, 2020. Between now and then, employers need to review their workforce and determine if any employees will no longer meet the salaried exemption and thus, will be entitled to earn overtime. In fact, now is a good time for employers to review all exempt employees to ensure that they are being treated appropriately under the FLSA.

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

©2019 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.