Category Archives: Discrimination and Harassment

“Hey, I was Just Trying to be a Nice Guy!” – Don’t be Inconsistent When Discussing An Employee Termination

A case out of the Eleventh Federal Circuit provides a cautionary tale for any employer who is trying to cut a terminated former employee a break in references.  Maybe don’t be a “nice guy”:

In Kragor v. Takedo Pharmaceuticals of America, Inc., 702 F.3d 1304 (11th Cir. 2012), the Appellate Court reversed and set for trial an age discrimination case in which a manager who had terminated an employee for misconduct disavowed the reason in a subsequent reference call.  He apparently wanted to help out the former employee—who learned about the kindness and brought it into evidence as proof that the reasons given for the termination were pretextual.  The Appeals Court found this contradiction created a triable case to allow the age discrimination case to proceed:

When the employer’s actual decisionmaker, after terminating an employee for misconduct (or the appearance of misconduct), says without qualification that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired, that contradiction—when combined with a prima facie case—is enough to create a jury question on the ultimate issue of discrimination.

So much for trying to be a “nice guy.”

Takeaways:  Be cautious in staying consistent with the reasons provided for a termination and statements to third parties.  Good intentions do not always lead to good results.  When you want to give a more positive reference after a troubled termination, work with legal counsel on maintaining consistency with the company’s reasons for termination.

What is a “Continuing Violation” in Employment Discrimination Law?

Federal and state anti-discrimination laws have short statutes of limitations.  There are significant reasons for this, including fairness to employees and the preservation of evidence which, in the employment setting, can disappear quickly with employee departures and the like.  But an important exception to the protection of short limitation periods is the “continuing violation” rule by which incidents that occurred outside of an expired statute of limitations period can be “resurrected” and aggregated with incidents that occurred during the period.  This is allowed, in very general terms, when the acts on either side of the statute of limitations show a “persistent, ongoing pattern” of discrimination.  Under the “continuing violation” rules, even a single act within the statute of limitations can bring in actions outside the period if the Court finds that such a “persistent, ongoing pattern” exists.

For an employer, this is a dangerous possibility.  But it is far from a blanket rule and cases and administration guidance provide considerable refinement, definition and protections.  Also, the rule has different application in different states, agencies, and federal circuits.

Takeaway:  An employer should at least have an “antenna up” for the possible application of a “continuing violation” rule when reviewing whether a newly reported incident could fit a “persistent, ongoing pattern” of discrimination given similar incidents reported by the employee years prior.  If that could be the case, consult legal counsel to see whether the “continuing violation” theory could apply and, perhaps, require more preemptive and protective action than the new incident itself may otherwise merit.

How to Handle Employees with the Flu

Seasonal flu has once again appeared in the homes, schools, and workplaces of Minnesota.  The Star Tribune reports that Twin Cities hospitals are at or near capacity with flu patients and hospitals are cautioning healthy family and friends to stay away.

Such widespread illness can lead to other rather dramatic reactions.  For example, employers wishing to avoid contagious spread of the flu and related workplace absences might decide to terminate the employment of an employee exposed to or diagnosed with the flu.  Can an employer do so consistent with applicable law?

In a recent case, the Minnesota Federal District Court held that an employer did not violate the Americans with Disabilities Act (ADA) or the Minnesota Human Rights Act (MHRA) when discharging an employee thought to have been exposed to the flu.  See Valdez v. Minnesota Quarries, Inc., No. 12-CV-0801 (D. Minn. Dec. 10, 2012).   The employee had traveled to Mexico at the height of the swine flu (H1N1) pandemic.  He was discharged following his return to Minnesota allegedly because of his possible exposure to the flu.  The employee sued claiming that he had been improperly regarded as disabled.  The court, however, determined that the flu (even the swine flu) is transitory and minor and therefore cannot be the basis of a regarded as disabled claim.

What if an employee actually has the flu?  Would a discharge on that basis violate the ADA or MHRA?   The 2011 amended ADA regulations state that the transitory and minor exception does not apply to allegations of actual disability.  See 29 C.F.R. § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”)  Accordingly, while often not the case, it is possible that an employee diagnosed with the flu may be considered disabled under applicable law if they are substantially limited in a major life activity.  Further, an employee with the flu may be entitled to protected leave under the Family and Medical Leave Act (FMLA) if they are incapacitated for more than three consecutive days and have received treatment from a healthcare provider.

Takeaway:  Employers should be careful to properly address the employment status of any employee having the flu, including a determination as to whether the employee is protected under applicable disability discrimination or leave of absence laws.  While it may be prudent to have an employee with the flu stay home until they have recovered, employers should consult with legal counsel before making any discharge decision.

Can an Employee Be Fired For Being Too Attractive?

In Iowa, an employer may lawfully fire an employee for being too attractive.  The Iowa Supreme Court recently held that an employer does not violate the Iowa Civil Rights Act when the employer terminates an employee “simply because the boss views the employee as an irresistible attraction.”

In Nelson v. James H. Knight DDS, P.C., the plaintiff, Melissa Nelson, worked for the defendant’s dental clinic for over 10 years.  Towards the end of her employment, there were several occasions when Nelson’s boss, Dr. Knight, complained that her clothing was too tight and “distracting.”  Dr. Knight admitted that he once told Nelson that if she saw his “pants bulging,” she would know her clothing was too revealing.  On another occasion, after Nelson made a comment regarding her infrequent sex life, Dr. Knight said “that’s like having a Lamborghini in the garage and never driving it.”

During the last six months of Nelson’s employment, Nelson and Dr. Knight began to exchange personal text messages.  When Dr. Knight’s wife – who also worked at the clinic – found the text messages, she demanded that Dr. Knight terminate Nelson.  Dr. Knight’s wife characterized Nelson as “a big threat” to their marriage.  Dr. Knight subsequently fired Nelson, and Nelson sued.

In her lawsuit, Nelson did not allege quid pro quo or hostile work environment sexual harassment.  Instead, Nelson’s only legal claim was that Dr. Knight fired her because of her gender.  The Iowa Supreme Court disagreed and stated that:

Nelson’s arguments warrant serious consideration, but we ultimately think a distinction exists between (1) an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and (2) a decision based on gender itself.  In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person.  Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.

The court also emphasized that Dr. Knight hired a female replacement for Nelson as evidence that the decision was not gender-based.

In reaching its decision in Nelson, the Iowa Supreme Court relied on a Title VII case, Tenge v. Phillips Modern AG Co., 446 F.3d 903 (8th Cir. 2006).  In Tenge, a supervisor terminated an employee after the employee engaged in a consensual, flirtatious relationship with her supervisor and the supervisor’s wife became suspicious about the nature of their relationship.  In holding that the termination did not violate Title VII, the Tenge court found that the termination was not based on the employee’s gender, but instead was based on her flirtatious conduct.  The court stated that “absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.”

In Nelson, the court acknowledged that the Tenge case was distinguishable because in Tenge the employee flirted with her supervisor while in Nelson the employee denied any flirtatious behavior.  But the Nelson court held that the primary issue in discrimination cases is the employer’s motivation, not the employee’s conduct.  Accordingly, the Nelson court found that Dr. Knight’s termination of Nelson was lawful because it was motivated by Dr. Knight’s particular relationship with Nelson and his feelings towards her, but was not based on Nelson’s membership in a protected class.

Takeaways:  The Nelson and Tenge decisions are helpful for employers because they distinguish between employment decisions motivated by gender and employment decisions motivated by relationships or conduct.  This gives employers some flexibility for resolving conflicts related to workplace relationships.  At the same time, workplace relationships may be perceived as coercive or harassing.  Therefore, employers confronted with issues relating to workplace relationships still need to be cautious about potential claims for quid pro quo or hostile work environment sexual harassment.

Dillard’s Agrees to $2 Million Settlement for Class Action Disability Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently announced a $2 million settlement in its class action disability discrimination lawsuit against nationwide retailer Dillard’s.  The lawsuit was venued in the U.S. District Court for the Southern District of California and challenged two practices that the EEOC alleged violated the Americans with Disabilities Act (ADA).

Medical Documentation Policy:  The EEOC alleged that Dillard’s maintained a policy that required all employees to disclose the exact nature of their medical conditions in order to be approved for sick leave.  Under the policy, a simple verification from an employee’s doctor that an absence was due to a medical reason was insufficient.  Many employees felt uncomfortable disclosing the precise nature of their conditions in order to justify an absence.  The EEOC argued that the policy was inconsistent with the requirement under the ADA that employers can only make inquiries into the disabilities of their employees when doing so is job-related and necessary for the conduct of business.

Maximum Leave Policy:  The EEOC also alleged that Dillard’s enforced a maximum-leave policy, which limited the amount of health-related leave an employee could take.  In practice, Dillard’s did not regularly engage in the interactive process with employees to determine if more leave was allowed under the ADA as an accommodation for the employee’s disability.  The EEOC argued that this practice was inconsistent with the ADA’s reasonable accommodation requirements.

Under the terms of the settlement, Dillard’s agreed to pay $2 million to identified victims of the policy and to create a fund to compensate additional, unidentified victims.  Dillard’s also agreed to:  (i) hire a consultant with ADA experience to revise the company’s policies; (ii) post documentation related to the settlement; (iii) implement training for supervisors and staff on the ADA, with an emphasis on medical inquiries and maximum leave policies; and (iv) develop a centralized tracking system for employee complaints involving disability discrimination.

Takeaways:  Policies and practices that do not comply with the ADA expose employers to unnecessary risk.  The Dillard’s case presents a good opportunity for employers to review their medical documentation and maximum leave policies and practices to correct any potential problems before liability arises.

Will the U.S. Supreme Court Ad–“Vance” Supervisor Liability Law under Title VII?

Employers need to keep an eye on the pending U.S. Supreme Court decision of Vance v. Ball State University where the “supervisor” rule establishing vicarious liability for harassment claims under Title VII likely will be expanded or contracted.  Vance involves an employee’s claim that her employer was vicariously liable for the harassing acts of a fellow employee who the employee herself regarded a “supervisor,” but who did not have actual power to “fire, hire, or promote” her. 

The distinction between a “co-worker” and a “supervisor” is critical.  Under the long-established Supreme Court Faragher and Ellerth rules for determining employer liability for the harassing acts of another employee, only a supervisor’s actions can give rise to vicarious liability for an employer (i.e., automatic liability with limited defenses).  In contrast, a co-worker’s actions require proof of negligence by the employer in order for there to be employer liability (i.e., knowledge and failure to take remedial action – a much more difficult standard of proof and subject to easier defenses).  The EEOC and many courts are not of like mind in the definition of “supervisor” with many courts requiring “fire, hire and promote” authority for a supervisor and the EEOC taking a more expansive and subjective definition.  Vance will likely settle the question. 

A good summary of the case and the oral argument at the Supreme Court, heard on November 26, 2012, is on the NPR website.

What does this mean for employers?  If the Vance decision adopts the more expansive definition of “supervisor” advanced by the EEOC, there likely will be greater vicarious liability exposure for employers encompassing the actions of employees who have some supervisory authority, but are without the power to “fire, hire, or promote.”  If the Court adopts a narrower definition and limits supervisor liability to something closer to the “fire, hire, or promote” rule, it will be particularly important for employers to be sure that in their organizational charts and job descriptions the authority to “fire, hire, or promote” is clearly and accurately demarcated in order to limit exposure for vicarious liability.

Takeaway:  Once the Vance decision comes down, employers should work with legal counsel to accommodate any changes it brings to the world of employer liability.  Minnesota Employer will keep you in the know, of course!

Employee Emotional Distress Claims – Usually More Bark Than Bite

If an employee claims he or she is suffering “emotional distress” on the job, a good employer takes the situation seriously since it can affect morale, productivity, and turnover.  But from the legal liability standpoint, the employer can take some solace in the narrow definition and high bar to bringing an intentional infliction of emotional distress claim against an employer.

To bring such a claim, courts require proof of the following:

  • Extreme and outrageous conduct that was;
  • Intentional or reckless; and
  • Caused severe emotional distress.

That is a high burden for the employee to prove.  One noted Minnesota case characterized “extreme and outrageous” conduct as conduct which is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Hubbard v. United Press Int’l., 330 N.W. 2d 428, 438-39 (Minn. 1983).  That is a rare occurrence and a very tough standard.

What does this narrow definition mean in practical terms?  Let’s say you are facing an upset employee with a credible claim that he or she has been treated in a hostile or negative manner by a supervisor or co-worker.  The employee is using the terms “emotional distress” and talking legal rights.  The conduct described seems unprofessional, harsh, or rude – but not “atrocious” or “utterly intolerable to the civilized community.”  In such a case, you do not need to go on legal “red alert.”  Rather, you can step back a bit from the situation with some confidence that you are not dealing with a legal cause of action and take measured, corrective action based upon good principles of human resource management rather than adopt immediate steps to defend against a lawsuit.

Takeaways:  Emotional distress is certainly a “five dollar word” and can be easily used by an upset employee.  But as a successful legal claim, it is rare.  An employer should consult with legal counsel when there is a possibility that “severe” or “atrocious” conduct occurred, but run-of-the-mill incidents of negative interactions or nasty misconduct can usually be addressed on their own terms and without an underlying concern about legal liability.

The DOL’s FMLA Forms Do Not Comply with GINA

The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011.  Most employers expected that the DOL’s newer forms, which can be found here, would comply with applicable laws.  Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, don’t comply with the Genetic Information Nondiscrimination Act (GINA).

Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from any applicant or employee, there is a safe harbor for employers who inadvertently receive genetic information in response to a lawful request for medical information, such as for FMLA purposes.

Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees and their family members.  In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. 

Employers who use this language and still receive genetic information from a health care provider will be deemed to have received the information inadvertently.

Takeaway:  Employers should realize that they cannot always rely on government forms.  Employers should add the GINA “safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims.  The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information received in response to such a request.  For more tips on complying with GINA, click here.

Employment Verification: A Double Edged Sword

As all employers know, the Immigration Reform and Control Act of 1986 requires employers to verify an employee’s work authorization status through the use of an “I-9” form. Generally, the biggest pitfall employers faced with the I-9 process was ensuring the paperwork was completed correctly, in a timely fashion, and maintained properly in case of an audit. Unfortunately, the Department of Justice is now focusing on the I-9 process for a completely different reason: National Origin Discrimination.

Along with race, gender, disability, age, and other “protected classes,” employers cannot discriminate on the basis of an employee’s national origin. Although this prohibition may evoke images of signs from a bygone era that stated: “No Irish Need Apply,” it is now becoming an issue for employers that take seriously immigration laws. On the one hand, an employer may be liable for hiring undocumented workers – who are, by definition, not United States citizens. On the other hand, an employer cannot treat a non-U.S. citizen applicant or new hire differently than a United States citizen.

Recently, the Department of Justice brought suit against a major producer and processor of eggs and egg-related products, with forty locations in six states, and approximately 1,850 workers. The employer was enrolled in the Government’s “E-Verify” program. According to the Complaint, the employer also utilized commercially-available third-party software “that integrated both the process of generating an electronic Form I-9 and access to the E-Verify program.” This program, according to the Department of Justice, “guided authorized users through the electronic Form I-9 process and the E-Verify program by soliciting information about a new hire and, based on the information provided, presented a series of additional informational screens.”

The software, the Government alleges, then sent the user on one of two paths, depending on whether the new hire was a U.S. citizen or a non-U.S. citizen. If the new hire was a U.S. citizen, the software instructed the user to accept verifying documents listed in Columns A, B, or C on the I-9 form. In contrast, if the new hire was not a U.S. citizen, the software instructed the user to only accept Column A documents. Based upon those allegations, the Department of Justice claims that the employer, “knowingly treated individuals differently in the employment eligibility verification process on account of their citizenship status.”

As relief, the Department requested, among other items:

  • That the affected individuals receive “full remedial relief” ”including back pay, front pay and/or reinstatement;”
  • An order for “injunctive measures to overcome the effects and prevent the recurrence of the discriminatory practices”; and
  • Finally, that the employer “pay an appropriate civil penalty as determined by the Administrative Law Judge for each work-authorized non-U.S. citizen who is found to have been subjected to the pattern or practice of discriminatory employment eligibility verification practices alleged in this Complaint.”

If the Department of Justice is successful, the price paid by the employer for utilizing a new piece of software will be steep. The employer is potentially liable for front pay, reinstatement, and a per-person civil penalty, for possibly hundreds of individuals.

Takeaways:  The intersection of employment laws and immigration laws can be complicated and mistakes can be costly. Even when an employer takes action, in good faith, to comply with one set of rules and regulations, the employer can, in the process, become liable for violations of other rules and regulations. Most importantly, it is worth remembering that software developers that create useful, time-saving tools may not always consider the legal implications of the applications created. When implementing new software, or enrolling in new online tools, having counsel review the system upfront may save significant expenses later if the software creates more problems than solutions.

What is the Statute of Limitations under the Minnesota Human Rights Act?

The Minnesota Human Rights Act (“MHRA”) requires that employees (1) bring a civil action, (2) file a charge with a local commission, or (3) file a charge with the commissioner within one year after the discriminatory practice occurred.  Minn. Stat. § 363A.28.  The running of the one-year statute of limitations period is suspended while the parties engage in a dispute resolution process, such as arbitration or mediation.

If an employee chooses to first bring a charge of discrimination with the Minnesota Department of Human Rights (“MDHR”), the employee may subsequently bring a civil action.  When doing so, the civil action must be brought:

  1. Within 45 days after receipt of notice that the commissioner has dismissed a charge;
  2. Within 45 days after receipt of notice that the commissioner has reaffirmed a determination of no probable cause or has decided not to reopen a dismissed case; or
  3. After 45 days from filing of charge, if a hearing has not been held or if the commissioner has not entered into a conciliation agreement that the charging employee signed.  The charging party must also notify the commissioner of an intention to bring a civil action, which must be commenced within 90 days of giving the notice.

See  Minn. Stat. § 363A.33.

Takeaway:  As soon as employers receive an employee’s charge of discrimination or civil action, which alleges discrimination in violation of the MHRA, they should make sure that the employee has met the applicable statute of limitations.  If the employee failed to timely file a charge or initiate a civil action, the employer has a strong defense and may be able to get the claim dismissed.

What Employers Need to Know About the Immigration Reform and Control Act

The Immigration Reform and Control Act (IRCA) makes it illegal for employers to employ knowingly an unauthorized alien, but it also prohibits employers from discriminating against employees on the basis of national origin or citizenship status.  Here’s what employers need to know about the IRCA:

Prohibition Against Employing Unauthorized Aliens

The IRCA states that it is illegal for an employer “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.”  The IRCA also generally makes it illegal to hire an individual for employment in the United States without verifying his or her eligibility to work in the United States through the I-9 process.  Good faith compliance with the I-9 process is an affirmative defense to an allegation of knowing employment of unauthorized aliens.  8 U.S.C. § 1324a.

Prohibition Against Discrimination On the Basis of National Origin or Citizenship Status

The IRCA make it illegal for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment because of:  (i) the individual’s national origin; or (ii) the individual’s citizenship status.  However, the IRCA states that it is not illegal for an employer “to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.”  8 U.S.C. § 1324b.

Takeaways:  In some circumstances, it can be difficult for employers to comply with the dual purposes of the IRCA.  Employers must be concerned not only with avoiding employment of unauthorized aliens, but also with avoiding discrimination against individuals based on their citizenship status or national origin.  Careful compliance with the I-9 process is one of the most effective ways to minimize an employer’s risks in this area.

Does the Minnesota Human Rights Act (MHRA) Apply to Out-Of-State Employees?

A federal court in Minnesota recently held that employees of Minnesota companies who neither live nor work in Minnesota are not entitled to the protections of the Minnesota Human Rights Act (MHRA).

In Longaker v. Boston Scientific Co., the court held that an out-of-state employee of Boston Scientific was not entitled to the protections of the MHRA.  The employee worked as a sales representative in California.  Boston Scientific has thousands of employees in Minnesota, and the employee’s agreement with Boston Scientific stated that his employment was governed by Minnesota law.  The court held that the employee lacked standing to sue Boston Scientific under the MHRA.  The court explained that:  (1) there is general presumption against out-of-state application of state statutes; and (2) the explicit language of the MHRA limits its application to in-state residents and employees.  Because the employee was a California resident and his employment took place entirely in California, the employee lacked standing to assert a claim under the MHRA.

Takeaway:  Employees for Minnesota companies who neither live nor work in Minnesota are likely not entitled to the protections of the Minnesota Human Rights Act.  However, out-of-state employees may be protected by the laws of the state in which they are located.


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