Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

On February 19, 2010, the Second Circuit Court of Appeals vacated a district court decision and reversed JetBlue Airways’ favorable summary judgment in a case brought by a former customer service supervisor who complained to her supervisor, who was also the alleged harasser, about a hostile work environment because other avenues of complaint may have appeared to be futile.

The employee alleged that over a seven-month period her supervisor made several remarks about wanting to massage or suck on a woman’s breasts, remarked about going home so that his wife could attend a “sex toy” party and asked a female coworker whether she had “gotten enough loving” over the weekend. Other employees testified that the supervisor grabbed female crewmembers, that he frequently made inappropriate comments and gestures, and that he stared at them as if he was mentally undressing them.

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In response to two U.S. Supreme Court decisions, the U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a proposed rule construing the “reasonable factor other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). 

In Smith v. City of Jackson and Meacham v. Knolls Atomic Power Company, the Supreme Court held that the RFOA defense acts as a complete bar to disparate impact liability where an employer demonstrates that its facially neutral policy or practice, which had a disparate impact on older workers, was based on a reasonable factor other than the plaintiff’s age. Although the RFOA defense operates similarly to Title VII’s business necessity defense, this defense under the ADEA has traditionally been more “employer-friendly” because it preserves an employer’s right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities without requiring a showing of business necessity.

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In Thompson v. North American Stainless LP, in a rehearing by the Sixth Circuit en banc, the full Sixth Circuit held that, in order for a third-party to claim retaliation based on the protected activity of another, the third party must have actually engaged in protected activity of his own. In doing so, the Sixth Circuit joined the Third, Fifth, and Eighth Circuits in so ruling.

In Thompson, a woman filed a sex discrimination charge with the EEOC.  Three weeks later, the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and, eventually, a lawsuit, and alleged that his termination amounted to retaliation for his fiancé’s EEOC charge. In response, the employer argued, among other things, that there is no cause of action under Title VII for retaliation against associated third-parties. The trial court agreed and dismissed the case. The plaintiff appealed, and the EEOC filed an amicus (“friend of the court”) brief in support of associational retaliation claims.

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 Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed -- 93,277 -- which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the sharpest increase, both numerically and statistically.

The increase in disability discrimination charges likely can be tied directly to the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) which makes it significantly easier for applicants and employees to establish that they have a protected disability. Employers can reduce the likelihood of being targeted for a disability discrimination charge by recognizing this new reality and engaging in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. Frequently, the give and take of the interactive process if conducted in good faith will either result in finding an accommodation that both sides can live with or demonstrating to the applicant or employee's satisfaction that no reasonable accommodations actually exist. Remember, the ADA, even as amended by the ADAAA, still does not require the employer to provide applicants or employees with the accommodation they want -- only a reasonable one.

With respect to retaliation charges, as we have preached in previous posts both here and here, employers must be careful to treat employees who have filed discrimination charges or lawsuits as they would treat any other employee -- no better, no worse. In fact, the U.S. Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville and Davidson County early in the 2009 term held that the retaliation protection provided by Title VII extend to employees who speak out about discrimination during the employer’s investigation into another employee’s internal complaint of discrimination. The Crawford decision, therefore, underscores employers' need to protect themselves from potential retaliation cases in this context as well by following up on any employees who claim "me too" in the course of internal discrimination investigations.

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The EEOC has revised its "Equal Employment Opportunity is the Law" poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which becomes effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Follow this link to obtain the new poster.

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When the Ohio Supreme Court agreed to hear the appeal in Allen v. Totes/Isotoner, it was widely expected that the Court would address the question of whether Ohio's pregnancy discrimination laws required employers to allow a woman who is breastfeeding to take unscheduled lactation breaks. Instead, a fractured court rendering five separate opinions (as well as the conclusion of Justice Lanzinger that she would have dismissed the appeal as having been improvidently accepted) dodged the question. 

The per curium opinion, which was joined in only by Justices Lundberg Stratton, O'Donnell and Cupp, upheld summary judgment in favor of Isotoner on the ground that Isotoner terminated Ms. Allen for what she agreed were unauthorized breaks from her work station. As a result, the per curium decision stated that it was unnecessary for the Court to address the issue of whether discrimination due to lactation was prohibited by Ohio's discrimination laws.

Justice O'Donnell then wrote separately in an opinion joined by Justices Lundberg Stratton and Cupp to emphasize his view that in light of the facts in the Allen case, any opinion of the Court on the question of whether "discrimination due to lactation" would have been an improper advisory opinion.

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CNN.com is reporting that a group of Philadelphia policemen and women have filed a class action lawsuit in federal court against the Philadelphia police department for race discrimination on the ground that the department allegedly permitted its white officers, including some of supervisory rank, to maintain a private website that allegedly was used as a forum for racially offensive comments. It is alleged that the website created a hostile work environment, in part, because it was both accessed and discussed in the workplace. Although the police department has disavowed any responsibility for the website, which was password protected, questions necessarily will arise regarding whether the department had knowledge of the content on the website and acquiesced to it and whether it permitted the site to be operated during work time. Even if the department can establish it did not sanction or condone the website, the lawsuit still raises a number of interesting issues as to the extent to which an employer can be held liable for discriminatory and/or harassing conduct of its employees by supervisors while they all are off duty.

We don't know whether the police department had a policy regulating its officers' internet access, either on duty or off duty. Such a policy, if it exists and was enforced, might support the department's attempt to distance itself from the racially-charged comments on the website. Similarly, the content and enforcement of its policy against harassment will undoubtedly be scrutinized in the months ahead. As it stands, the department faces what looks to be an arduous legal battle. In addition, the department undoubtedly will need to take action internally to ensure that any future employment decisions, such as promotions and terminations, aren't tainted by the allegations in this complaint.

Here is a link to the CNN article: http://www.cnn.com/2009/CRIME/07/17/police.racism.lawsuit/index.html, which appropriately warns that the complaint -- to which it links -- may be highly offensive to some.

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On July 15, 2009, the EEOC published “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” a document directed to employees facing layoffs. The publication is not apparently intended to change existing regulations, but rather to summarize the legal requirements for severance agreements under the ADA, Title VII, the Equal Pay Act, and, separately, the Age Discrimination in Employment Act.

As noted by the EEOC’s summary, in order to minimize the risk of potential litigation, many employers provide laid-off employees with optional severance agreements, by which employees may obtain certain compensation or benefits in exchange for releasing the employer from liability. The EEOC document specifically addresses the validity of such releases, and it is therefore useful reading for employers as well.

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Generally, the firing of a professional sports team's general manager is not going to raise my interest as an employment lawyer, but the comments made by the owner of the Chicago Blackhawks after Dale Tallon was fired certainly piqued my interest. Those hockey fans in the audience may know that Tallon's firing came shortly after the NHLPA filed a grievance claiming that he failed to send out timely qualifying offers to players that were restricted free agents. Rather than risking those players becoming unrestricted free agents, Tallon quickly signed them to long term contracts that probably aggravates the team's salary cap issues in the near term and ultimately may cost the team more money.

In an effort likely designed to deflect attention from this blunder, Rocky Wirtz, the Blackhawks owner, is quoted by MSNBC.com as follows regarding Tallon's replacement: Asked what Bowman, who's in his ninth year with the Blackhawks, brings to the job that Tallon didn't, Wirtz said: "He's 36, Dale is 58. We always want younger people. What he brings is a system in place to get better," Uh oh.

Fortunately for the Blackhawks as it relates to Tallon's situation, the recent Supreme Court decision in Gross v. FBL Financial Services probably saves them from a potential claim of age discrimination. As reported previously, Gross holds that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. Here, John McDonough, the Blackhawks president who appears to have been the driving force behind the termination, acknowledged that Tallon probably would not have been fired if not for the free agent incident. For future reference, however, the Blackhawks may want to keep tabs on Congress, which already has announced that it will hold hearings directed at overturning the Gross decision.

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On June 29, 2009, the Supreme Court addressed a provocative question about the current state of workplace diversity in the United States. In the controversial Ricci v. DeStefano decision, the Court determined by a vote of 5-4 that only in very narrow circumstances can public employers engage in disparate-treatment discrimination to avoid violating the disparate impact provision of Title VII of the Civil Rights Act. In order to make a race-conscious preventative decision, an employer must have a strong basis in evidence that a given selection method was deficient and that discarding that method’s results is necessary to avoid creating a disparate racial impact.

Title VII protects employees from two types of discrimination based upon race, color, religion, sex, and national origin: intentional acts of discrimination (disparate treatment), and facially neutral policies and practices that have a disproportionate adverse effect on minorities (disparate impact).   If an employee makes a prima facie showing of disparate impact discrimination, the burden then shifts to the employer to prove that the practice in question is job related and consistent with business necessity. Even if the employer meets this burden, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has a lesser disparate impact and serves the employer’s legitimate needs. Ricci posed the question of under what circumstances an employer may take race-conscious action to avoid disparate-impact liability given this statutory scheme.

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One month ago, we discussed a bill introduced in the Ohio General Assembly to prohibit discrimination on the basis of sexual orientation and gender identity and expression. Representative Barney Frank (D-Mass.) recently introduced a similar bill in Congress to prohibit employment discrimination on the basis of sexual orientation and gender identity, The Employment Non-Discrimination Act of 2009, H.R. 2981. This bill, which has been referred to committee, defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This language is similar to the proposed definition of “gender identity and expression” under the Ohio bill. This proposed bill, like the Ohio proposal, also includes broad protection of “actual or perceived” sexual orientation. The language in the proposed federal statute limits potential claims under the Act to disparate treatment and retaliation actions only, expressly excluding disparate impact claims. The procedures and remedies for violations of the Act are the same as those provided under Title VII. The proposed federal statute, like the proposed Ohio statute, expressly excludes religious organizations that are exempt from Title VII’s religious discrimination provisions.

The proposed federal statute, in contrast to the Ohio proposal, directly addresses grooming standards and restroom, shower, and changing facility usage. Under the federal proposal, employers may deny, on the basis of gender identity, employees access to changing areas or showers where being seen unclothed is “unavoidable”—if the employer provides “reasonable access” to adequate facilities “not inconsistent with the employee’s gender identity” determined at the time of employment or when the employee notifies the employer that he/she is undergoing/has undergone gender transition. The federal proposal also allows for reasonable dress and grooming standards—provided the employer allows employees who are undergoing, or who have undergone, gender transition to adhere to the standards for the gender to which the employee transitioned or is transitioning. 

We’ll provide updates as additional information becomes available.

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So-called “mixed motive” cases, where there is evidence of unlawful bias but also evidence of a legitimate, nondiscriminatory reason for an employment action, have generated a great deal of debate over the applicable burden of proof. In 1989, a divided U.S. Supreme Court held in Price Waterhouse v. Hopkins that, once a plaintiff has proven that unlawful animus was “a motivating factor” in an employment decision, the burden of proof shifts to the defendant to prove that it would have taken the same action even absent the unlawful animus. This approach was essentially ratified by Congress when it approved certain amendments to Title VII in enacting the Civil Rights Act of 1991. But, because Price Waterhouse applied to a claim under Title VII, and federal age discrimination claims fall under the Age Discrimination in Employment Act (ADEA), which was not similarly amended by the Civil Rights Act of 1991, the burden of proof applicable to mixed-motive ADEA cases has remained in dispute.

On June 18, 2009, the U.S. Supreme Court resolved this dispute in Gross v. FBL Financial Services, holding that the burden of proof for an ADEA claim remains with the plaintiff at all times, even in a mixed-motive case. The Court’s 5-4 decision relied heavily on the differences in statutory framework between the ADEA and Title VII in distinguishing the result in Price Waterhouse. The majority opinion, written by Justice Thomas, pointed out that the ADEA required the plaintiff to prove that he was demoted “because of” his age and that there is no statutory basis to shift the burden of proof to the defendant simply because the plaintiff produced some evidence that age was one motivating factor in the decision. The plaintiff still retained the burden of proof to demonstrate that he would not have been demoted “but for” his age.

 
With Congress all too willing these days to enact legislation overturning employment law decisions of the Supreme Court that displease it, it will interesting to see how long the holding in Gross stands. 

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In April 2008, I reported that a divided three-judge panel of the Sixth Circuit in Thompson v. North American Stainless LP held that an employee may sue for retaliatory acts against him by his employer in response to protected activity by a related employee—a close friend or family member. This decision was in contrast to the decisions of the Third, Fifth, and Eighth Circuits rejecting associational retaliation claims. After rehearing en banc by the Sixth Circuit (by the entire court), the Court joined its sister circuits in rejecting a cause of action for associational retaliation in a narrowly-divided opinion.

In Thompson, a woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman’s fiancé, who it also employed. The fiancé filed his own EEOC charge and, eventually, a lawsuit, and alleged that his termination amounted to retaliation for his fiancé’s EEOC charge. In response, the employer argued, among other things, that there is no cause of action under Title VII for retaliation against associated third-parties. The trial court agreed and dismissed the case. The plaintiff appealed, and a divided three-judge panel of the Sixth Circuit reversed and held that Title VII provides a cause of action for retaliation in response to a related employee’s protected activity. The court defined this new cause of action stating, “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action.” (Emphasis added.) In so holding, the panel closely examined the Supreme Court’s definition of “retaliation”—that which would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” (Quoting the U.S. Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006).) 

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Last week, a United States District Court Judge for the Eastern District of Pennsylvania issued one of the few decisions thus far to analyze the reach of the Lilly Ledbetter Fair Pay Act.  In Rowland v. CertainTeed Corp., 2009 U.S. Dist. LEXIS 43706, Judge Schiller held that the Ledbetter Act’s extension of the statutory time period for claiming pay discrimination does not apply to a failure-to-promote case. In so holding, Judge Schiller reasoned that Congress limited the Ledbetter Act to claims of “discrimination in compensation.” 

Under the Ledbetter Act, an unlawful employment practice occurs “when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” 29 U.S.C. § 626(d)(3) (2009). This legislation followed the Supreme Court’s decision in Ledbetter v. Goodyear, which limited Ledbetter’s claim to adverse actions taken within 300 days of filing the EEOC Charge.  

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The Ohio Supreme Court held yesterday that a discharged employee is barred from pursuing an action for age discrimination under R.C. § 4112.99 when the discharge has been arbitrated and was found to be for just cause. More specifically, the Court concluded that R.C. § 4112.14(C), which prohibits age discrimination lawsuits if an arbitrator upheld a discharge for just cause, applies to age discrimination claims brought under § 4112.99. So if a Plaintiff files a lawsuit under § 4112.99, even though this provision does not mention arbitration proceedings, the state age discrimination claim may still be prohibited by § 4112.14(C). Meyer v. UPS, Inc., 2009-Ohio-2463. 

In Meyer, the plaintiff, Robert Meyer, was fired from his employment with UPS. The grievance filed by Mr. Meyer over his discharge was denied, and his discharge was upheld by a panel of union members and company management. Mr. Meyer filed a complaint in state court alleging workers compensation retaliation and amended the complaint to add state claims for age discrimination. Under Ohio law, a plaintiff may choose between several age discrimination statutes, including § 4112.02(N), § 4112.14, or § 4112.99. These statutes provide different damages to a plaintiff and arguably are covered by different statutes of limitations. Section 4112.14 is the only one that refers to arbitration. In this case, Mr. Meyer chose to file his claim under § 4112.99.
 

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Ever wonder if you can require an employee to split the costs of mandatory arbitration? The Sixth Circuit reinforced its 2003 en banc decision that allows for cost-splitting provisions in arbitration awards in the decision it issued Tuesday in the case of Mazera v. Varsity Ford Services, LLC et al. Of course, the court’s decision is not simply an affirmation that cost-splitting provisions are okay—rather, it is an affirmation that the validity of these provisions must be assessed on a case-by-case basis.

In this case, Omari Mazera was fired from his job as a car porter at Varsity Ford Services, LLC (“Varsity”). Mazera filed a lawsuit alleging that Varsity had discriminated against him on the basis of his race and disability; he also moved the district court to declare that the arbitration provision in Varsity’s employee handbook was unenforceable. 

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On May 12, Representatives Stewart and McGregor introduced into the Ohio House of Representatives H.B. 176 to add “sexual orientation or gender identity and expression” to the list of protected classes under Chapter 4112, Ohio’s anti-discrimination statute, and R.C. 4111.17, which prohibits wage discrimination. Interestingly, the bill limits the statutes’ coverage for the two new classes only —sexual orientation and gender identity and expression—to government employers and employers employing 15 or more persons (as opposed to the four or more persons required for other protected classes). [R.C. 4112.01(2).] 

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We have been receiving more and more questions from human resources professionals asking how the ADA might impact their preparation for a potential pandemic flu. Now the EEOC has issued technical guidance on the topic, focused primarily on employers’ rights to make medical inquiries and require medical examinations of applicants and employees.  With respect to applicants, the EEOC notes that the ADA operates normally to preclude all disability-related questions and medical exams until after a conditional offer has been made.  With respect to current employees, who can be required to respond to medical inquiries or undergo medical exams only if they are job-related and consistent with business necessity, however, the EEOC recommended a model survey of employees that could be issued to all employees in preparation for a pandemic. The model survey is reprinted below:

ADA-Compliant Pre-Pandemic Employee Survey:

Directions:   Answer “yes” to the whole question without specifying the reason or reasons that apply to you.  Simply check “yes” or “no” at the bottom.

In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
 

    If schools or day-care centers were closed, you would need to care for a child; 

    If other services were unavailable, you would need to care for other dependents;

    If public transport were sporadic or unavailable, you would be unable to travel to work,  and/or:

      If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:   YES __________   NO __________
 

The EEOC’s guidance also clarifies its position that employers may enforce rules requiring employees to behave in a hygienically appropriate manner to avoid the spread of the flu, to wear personal protective gear such as face masks, and to require employees to work from home.
 

In a separate release cryptically titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu),” the EEOC reminds us that Title VII “prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” The “guidance” states nothing else as it relates to Title VII. Presumably, the EEOC wants to remind employers not to direct any employment actions at workers of Mexican descent out of a fear or concern that they may be more likely to carry the H1N1 flu virus.

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Yesterday, the U.S. Supreme Court heard oral arguments in Ricci v. DeStefano, a case in which several white and Hispanic New Haven firefighters claim that they were discriminated against when the city refused to certify promotion test results based on a concern that the test may have been flawed.  Attorneys for the firefighters contend that the city improperly refused to certify the test results because the test did not generate a sufficient number of African-American candidates for promotion. Attorneys for the city contend that the city properly took a second look at the validity of the test when it appeared to have had an impermissible disparate impact on African-Americans in violation of Title VII and then refused to certify the test results when it discovered flaws in the validity of the test and the testing process.

During yesterday’s argument, Justice Souter expressed concern that, unless the city has the flexibility to reconsider its test results, it may be placed in "a damned if you do, damned if you don't” situation. Any decisions the city based on the test results would be a likely target for litigation under either a claim of disparate treatment (the firefighters’ claim in this case) or a claim of disparate impact (the likely claim of African-American promotion candidates had the test results been certified). This dilemma results, as Justice Scalia noted, in putting the disparate treatment and disparate impact models of discrimination "at war with one another."

When this decision is announced, it undoubtedly will raise a firestorm of controversy.  We will be there to let you know what it all means.

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Ohio State Senator Ray Miller (D), 15th District, has introduced Senate Bill 91, which would prohibit discrimination by an employer against any person because of that person's credit history. In short, the bill would amend Ohio's discrimination laws to include the use of "a person's credit rating or score or consumer credit history as a factor in making decisions regarding that person's employment, including hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment."

Though the bill may be well intended, it creates in its current form bad policy for the State of Ohio. There certainly are many jobs out there where an individual's creditworthiness should have no impact on their ability to successfully perform the functions of their job. On the other hand, certain jobs, such as those that require handling or accounting for the employer's or the public's money, do appear to require at least some consideration of the individual's ability to manage money. The individual's own personal credit history may be an appropriate indicator of the person's ability to do those kinds of jobs. The EEOC, which enforces Title VII and other federal discrimination laws, as well as the federal courts, have recognized that employer credit checks can have an unlawful disparate impact against racial and ethnic minorities, but they permit employers to defend the practice by establishing that the individual's creditworthiness is job related for the position in question and consistent with business necessity. S.B. 91, however, contains no similar exception based on job-relatedness and instead absolutely prohibits employment decisions based on an individual's credit information. As a result, S.B. 91, in its current form, is another unnecessary and unrestrained limitation on Ohio businesses' ability to manage their workforce and to compete in our currently dismal economy.

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On April 1, 2009, in a 5-4 decision, the United States Supreme Court clarified an issue of confusion among lower courts when it held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.” 

The case, 14 Penn Plaza, LLC v. Pyett, No. 07-581, 556 U.S. ___ (2009), is a marked departure from established precedent in some jurisdictions and welcome news for employers who often prefer to present their cases to an arbitrator, rather than a jury. 

Until 14 Penn Plaza, the Supreme Court’s direction regarding the enforceability of a provision in a collective bargaining agreement that required a union member to arbitrate a statutory discrimination claim was not clear. In an earlier decision discussing whether an employee could be compelled to arbitrate a statutory discrimination claim, Alexander v. Gardner-Denver, 415 U.S. 36 (1974), the Court found that the provision at issue did not expressly require arbitration of a member’s statutory rights, so the employee could not be precluded from bringing statutory claims in a judicial forum.

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 The Ohio Fifth District Court of Appeals last week released an opinion in Nursing Care Mgmt. of Am., Inc. v. Ohio Civ. Rights Comm’n, that upheld the Ohio Civil Rights Commission’s determination that an employer unlawfully terminated an employee on the basis of pregnancy when the employer terminated the employee because she required pregnancy-related disability leave but had not met the minimum length of service requirements for maternity leave under the employer’s leave policy. In the decision, the Fifth District sets forth a rule requiring employers to provide maternity leave for a “reasonable period of time” and then reinstate the employees to their former positions—or positions of like status and pay—regardless of the employers’ policies on disability or maternity leave or whether the employees qualify for leave under the federal Family and Medical Leave Act (FMLA). 

Facts:

In Nursing Care, employee Tiffany McFee, who was already pregnant at the time of her hire, requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees were eligible for 12 weeks of leave after one year of service. Employees with less than one year of service were not eligible for leave. Keep in mind as well that the FMLA only guarantees an employee 12 weeks of unpaid family or medical leave after an employee has 12 months of service—provided the FMLA applies to the employer and the other FMLA requirements are met. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth. 

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A termination within three months of an employee’s EEOC charge, combined with a claim that the employer increased its scrutiny of that employee after his charge was filed was enough to prevent summary judgment--even where the employer had refrained from terminating the employee at its first opportunity following his charge. Hamilton v. GE.

Jarrett Hamilton sued GE alleging that he was terminated in retaliation for filing an age-discrimination charge with the EEOC approximately three months earlier. He claimed that after he filed the charge, the company intensified its scrutiny of his work.  Of course, he filed the charge while on a 30-day suspension that had been agreed to after he had been terminated while under a Last Chance Agreement (LCA). The Company did not fire him when the first opportunity to do so arose after he filed the charge but later terminated him for what it said was unacceptable conduct, including refusing work directions from a supervisor and using “unacceptable foul and abusive language.”

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In a press release issued yesterday, the Equal Employment Opportunity Commission (EEOC) reports that, in its fiscal year 2008 (October 1, 2007 – September 30, 2008), there was a 15 percent increase in the number of employment discrimination charges filed against employers. The 95,402 charges filed are more than the number of charges filed in any other one-year period in the history of the agency. The greatest percentage increase was in age discrimination charges, up 28.7 percent from the previous year. Sex discrimination charges were up 14 percent, and race charges were up 11.2 percent. There was a smaller percentage increase in disability charges (9.7 percent), but with the recently-passed amendments to the Americans with Disabilities Act, employers will likely see a significant increase in disability charges in fiscal year 2009. 

The steep increase in discrimination charges was no doubt fueled, in part, by job losses in the beginning stages of the economic recession. The continued down-turn of the economy in the last quarter of 2008 and early months of 2009 makes it almost certain that the number of discrimination charges will continue to increase.

So what does all of this mean for you as an employer? To begin, it is far more likely that employers will be sued or will face discrimination charges as employees are laid off or face other adverse employment actions. An economic reduction-in-force will, very possibly, generate charges or lawsuits. All too often, employers do not exercise the care needed with the decision-making leading up to a reduction-in-force. Careful attention to the process and documentation in the early stages, however, can make legal challenges less likely to occur and can make those that are filed more easy to defend. 

As we’ve discussed before, employers should develop and document a sequential approach from the very earliest stages of the decision-making leading up to a reduction-in-force. Key steps in that approach include:

• Reorganizing or eliminating job duties; 
• Selecting the employees best-qualified to perform remaining job duties;
• Establishing criteria for termination or lay-off decisions that are based on legitimate business reasons;
• Documenting the selection criteria, procedure, and decisions;
• Conducting a statistical review to identify any disproportionate impact on protected class employees and, if a disproportionate impact is shown, carefully reviewing decisions to assure that they are supported by legitimate business considerations.

After these steps have been taken, the company should consider payment of severance to and securing signed release agreements from those who are terminated. It is a mistake, though, to presume that all terminated employees offered severance will sign release agreements and therefore give short shrift to the initial decision-making and documentation steps. All it takes is one terminated employee who refuses to sign a release and, instead, files a charge or a lawsuit to negate the savings of the reduction-in-force through the cost of defense, settlement, or an adverse judgment.

Even if your company is not currently in a reduction-in-force mode, careful attention to all employment decisions is essential to reduce the risk of discrimination charges. Things like frank and candid communication in performance reviews and active involvement by human resource personnel in all adverse employment actions can make it far easier to defend later decisions to terminate in a reduction-in-force. 

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On March 2, 2009, the Equal Employment Opportunity Commission (EEOC) issued proposed rules to implement Title II of the Genetic Information Nondiscrimination Act (GINA).

GINA, which was signed into law on May 21, 2008, prohibits health insurers and employers from discriminating on the basis of genetic information. The EEOC is responsible for developing implementing regulations by May 21, 2009 for Title II, which applies to private and government employers. (See former blog post on May 21, 2008 entitled “Dream of GINA Now a Reality”). Generally, Title II prohibits employers from discharging, refusing to hire, or otherwise taking adverse employment action against applicants or employees based on their genetic information. It also prohibits employers from intentionally acquiring genetic information about applicants and employees. Title II of the Act will become effective on November 21, 2009. 

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On January 29, the Lilly Ledbetter Fair Pay Restoration Act was the first bill signed into law by President Obama. As discussed in prior blog entries, the new law gives a employee or former employee the right to file a charge of discrimination within 180 days (or 300 days in some states, including Ohio) of their most recent paycheck. The Act overturns a U.S. Supreme Court decision holding that the statute of limitations started to run as soon as an employee received his or her first unfair paycheck. Under the new law, each new paycheck alleged to be discriminatory extends the statute of limitations for an additional 180 (or 300) days. 

The new law will significantly impair the ability of companies to defend claims about old pay decisions in federal court, especially for those employers who have forgotten or have not retained documentation as to why a given pay decision was made in the first place.

To read our client alert on this new law, click here.

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Earlier this week, the U.S. Supreme Court released an opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. In this case, the employer, a school district in Tennessee, conducted an internal investigation into allegations of sexual harassment against its employee relations director, Mr. Hughes. Employee interviews were conducted in connection with the investigation. When the plaintiff, Ms. Crawford, was interviewed, she informed the school district that Mr. Hughes had sexually harassed her. Following the investigation, the school district took no action against Mr. Hughes but fired Ms. Crawford, alleging embezzlement.

Ms. Crawford filed suit against the school district, claiming that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964. Title VII, which prohibits sexual discrimination and harassment, also makes it unlawful for “an employer to discriminate against any employee who . . . has opposed any practice made an unlawful employment practice by this subchapter.” The school district’s motion for summary judgment was granted by the district court and upheld by the Sixth Circuit Court of Appeals on the grounds that Ms. Crawford did not “oppose” the sexual harassment because she did not proactively complain about it or file a charge with the EEOC, but merely responded to questions asked during an internal company investigation.

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If you missed our recent seminar:  "Understanding the Changes to the ADA and FMLA:  New Hurdles for Employers," which was held on Wednesday, January 14, 2009, we invite you to listen in to the audio from this panel discussion. We hope you find it helpful.

Seminar Audio Recording: 
Understanding the Changes to the ADA and FMLA:  New Hurdles for Employers.
(please note that this is a live recording of the two-hour presentation)

The FMLA portion of this panel discussion was presented by Brian Hall and Marc Fleischauer and the ADA portion was presented by Christy Pate and Dave Croall. 

A copy of the slides and handouts from this presentation are available here (PDF).

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On Monday, December 15, 2008, the City of Columbus modified its ordinances related to discrimination (Chapter 2331 of the Columbus City Codes). The modifications add five new protected classes to the employment discrimination ordinance: age, disability, gender identity or expression, familial status, and military status. 

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Numerous news reports suggest that President-Elect Obama will name California Congresswoman Hilda Solis (D. Cal.), who was a co-sponsor of the Employee Free Choice Act, as his administration’s Secretary of Labor. Both the SEIU and the AFL-CIO have issued press releases enthusiastically responding to this news. Those of you who are curious or wary about this selection may wish to visit her website at http://solis.house.gov

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The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. 

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National banks may be missing out on a defense available to them against certain state-law employment claims brought by terminated bank officers. In particular, the National Bank Act (NBA) allows national banks to dismiss officers “at pleasure, and appoint others to fill their places.” This provision has been interpreted to mean that state-law tort and contract wrongful discharge claims by terminated bank officers are preempted and, thus, subject to dismissal. See, e.g., Boesch v. Champaign National Bank, Case No. 24014 at 6 (9th App. Summit Cty., June 30, 2008); Schweikert v. Bank of America, Case No. 06-2137 (4th Cir. April 1, 2008).

The NBA preemption defense applies, however, only when a bank’s board of directors makes the termination decision or delegates the authority to do so and then ratifies the decision. The board’s ratification need not occur before or on the termination date, but it needs to occur as promptly afterward as possible.

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President Bush signed the ADA Amendments Act (S. 3406) into law Thursday, September 25. The new provisions, intended to clarify and strengthen protections Congress intended to guarantee in the original ADA, go into effect on January 1, 2009. For more information on the provisions of the new law and what the law means for employers, please read our previous postings where these issues are discussed in more detail.

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The decision in a recent federal court case against the United States Library of Congress shows clearly the risk an employer takes when making employment decisions based on a person’s gender identity. In Schroer v. Billington, D.D.C., Case No. 05-1090, September 19, 2008, the Library of Congress was found guilty of sex discrimination under Title VII when it withdrew a job offer just after the Library became aware that the person being hired – Diane Schroer – was undergoing medical treatments to change her sex from male to female. Ms. Schroer is a decorated military veteran and had been hired for a terrorism research analyst position at the Library. Shortly after being hired, she disclosed the fact that she was undergoing sex change treatments, and the Library of Congress told her the next day that she would not be a “good fit” for the job.

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On Wednesday, September 17, by voice vote, the House of Representatives approved the Senate version of the ADA Amendments Act (ADAAA) (S.3406), which the Senate had unanimously approved last week. The White House immediately issued a statement that President Bush looks forward to signing the bill into law. Once signed, the ADAAA will take effect on January 1, 2009.

The Senate bill differed slightly from the previously passed House version. For employers, the most significant difference between the two bills is the decision to eliminate a definition for “substantially limits,” which was included in the House bill. Instead, the new bill directs the EEOC to abandon its current regulation – a regulation that the bill specifically finds too restrictive – and to create a new rule that provides broader coverage.  

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As previously reported, many federal contractors will be required to file their first annual VETS-100A report by September 30, 2009 based on a final rule issued earlier this year.  In order to complete the new report, federal contractors covered by the new rule must start collecting the required data no later than August 31, 2008. 

The VETS-100A, like the VETS-100, requires a federal contractor to have 12-months of data collected.  The 12-month period must end on a date between July 1 and August 31, 2009.  Likewise, this means that the contractor must begin collecting the data between July 1 and August 31, 2008.  If you are a federal contractor, and if you will be required to fill out the new VETS-100A form, you should either already be collecting data or must start collecting it before August 31. 

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The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

• The definition of disability is to be construed broadly.
• Clarifies the definition of “disability” by:
  • Defining “substantially limits” to mean materially restricts (rather than the current standard of prevents or severely restricts);
  • Defining “major life activity” broadly and including within that definition “major bodily functions”;
  • Clarifying that an impairment substantially limits one major life activity does not have to limit any other major life activities;
  • Clarifying that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active;
  • Prohibiting consideration of the ameliorative effects of mitigating measures in determining whether an individual has a disability; 
  • Stating that an individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions. 
• Provides that employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

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In Kentucky Retirement Systems v. EEOC, No. 06-1037, 2008 WL 2445078 (U.S. June 19, 2008), the Supreme Court recently held that “where an employer adopts a pension plan that includes age as a factor” (in determining eligibility for retirement with pension benefits), and the employer subsequently “treats employees differently based on pension status,” the plan does not automatically violate the Age Discrimination in Employment Act (ADEA). Rather, the Court held that the plaintiff challenging such a policy must show that the differential treatment was “actually motivated” by age. In a 5-4 decision — with a rather strange alignment of the justices — the majority, which consisted of Justices Breyer (who authored the opinion), Stevens, Souter, and Thomas and Chief Justice Roberts, reversed the Sixth Circuit’s en banc ruling striking down the pension plan as facially discriminatory.

[This post serves as a follow up to my earlier posts on March 26, 2008 and January 2, 2008 regarding the decision in Erie County Retirees Association v. County of Erie by the Third Circuit upholding the EEOC’s rule allowing employers to coordinate retiree healthcare benefits with Medicare benefits, effectively resulting in equal total benefits between younger retirees and older Medicare-eligible retirees but unequal amounts spent on the two groups’ benefits because a portion of the Medicare-eligible retirees’ payments come from Medicare.]

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Employers with federal contracts worth $100,000 or more entered into on or after December 1, 2003 will now be required to file a new form, VETS-100A, with the Veterans’ Employment and Training Service (VETS). Covered federal contractors must begin collecting the new information this summer and file their first annual reports on the VETS-100A form by September 30, 2009. 

Employers working on federal contracts of $25,000 or more that predate December 1, 2003 must continue to file the VETS-100 form. Some employers with contracts falling into both categories will be required to file both forms, although VETS predicts that most contractors will file either the VETS-100 form or the VETS-100A form but not both. Modifications of pre-December 2003 federal contracts made on or after December 1, 2003 create new contracts. Contractors subject to such modified contracts need only track and report under the new VETS-100A form for the modified contract – and only if the contract meets the $100,000 threshold.

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In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.

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After more than a decade of effort, supporters of the Genetic Information Nondiscrimination Act (GINA) were finally granted their wish. Passed overwhelmingly by the Senate (95-0) and House (414-1), GINA was signed into law today, May 21, 2008, by President Bush. Title I prohibits genetic discrimination in the area of health insurance while Title II ensures nondiscrimination in the employment arena.

Employers have plenty of time to bring their plans and workplaces into compliance. The Act’s group health plan provisions are effective for plan years beginning one year after enactment. The employment provisions become effective 18 months after enactment – November 21, 2009.

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It may seem odd to include a statement in an employment application or offer that limits the time that an employee has to file legal claims that may arise later in the employment relationship. Recent case law, however, suggests that it is something that all employers should consider and decide if it is appropriate for their business and their employees.

In the last three years, a line of case law has developed in Ohio and the Sixth Circuit that allows employers to limit the time period by which employees must bring claims arising from their employment. The cases all involved employers that included in their employment applications a provision stating that, by signing the application and subsequently accepting employment, the employee agreed to bring all claims arising out of the employment relationship within a certain period of time—a time period that is shorter than statutory limits. Some of the applications stated that any claims had to be filed within a period of time as short as six months.

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This is an update to my prior post on January 2, 2008 regarding retiree healthcare benefits.

A legal battle dating back to 2000 regarding retiree benefits came to a close recently.  In 2000, the Third Circuit ruled that treating Medicare-eligible retirees differently than younger retirees violated the Age Discrimination in Employment Act (ADEA).  This prompted the EEOC to issue an exemption to the ADEA allowing employers to reduce or eliminate retiree healthcare benefits for Medicare-eligible retirees, while providing higher levels of benefits for those retirees who are not Medicare-eligible.  The American Association of Retired Persons (AARP) challenged the EEOC's authority to issue this rule.  The district court and Third Circuit rejected AARP's challenge. 

Recently, the U.S. Supreme Court, as anticipated, declined to hear AARP's appeal on this issue.  This means that, absent Congressional action amending the ADEA, employers can now provide retiree healthcare benefits and coordinate those benefits with Medicare without fear of violating the ADEA.

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On March 5, 2008, the EEOC announced that employment discrimination charges increased by nine percent in 2007. This represents the largest one-year increase since 1993. Race discrimination continued to be the most commonly filed charge, followed by retaliation charges, which, for the first time, surpassed sex/gender discrimination charges. Employers also faced a record 5,587 pregnancy discrimination charges – 14 percent more than the prior record, which was set in 2006. In fact, most of the major charge categories saw double-digit percentage increases in 2007. As a result of these large increases, the EEOC recovered $345 million in monetary relief for charging parties, a 26 percent increase over the amount recovered in 2006.

These statistics can be explained just as easily by a heightened awareness of the law among employees, an increasingly diverse workforce, and increased job cuts as a result of a slow economy as by an actual rise in workplace discrimination and/or retaliation. Nevertheless, EEOC Chair Naomi Earp suggested that the statistics show that “[c]orporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively.”

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The Age Discrimination in Employment Act (“ADEA”) expressly states that a civil action cannot be filed until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC. A primary rationale behind the charge-filing requirement is to allow the EEOC an opportunity to resolve the dispute by informal methods. To that end, the EEOC has developed a specific form, labeled “Charge of Discrimination.” In a decision issued yesterday, though, the U.S. Supreme Court held that a plaintiff should have been allowed to pursue her ADEA claim even though she did not file a formal charge with the EEOC until after she filed her court complaint. In Federal Express v. Holowecki, the Court ruled that plaintiff’s “Intake Questionnaire, and attached six-page affidavit was sufficient to satisfy the ADEA’s charge-filing requirement. The Court reached this conclusion even though the EEOC neither assigned a charge number nor informed Federal Express that a charge had been filed.

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Ellen Mendelsohn sued Sprint under the Age Discrimination and Employment Act of 1967 (ADEA). In support of her claim, she sought to introduce testimony by five former Sprint employees who also claimed age discrimination even though none worked in Mendelsohn’s group or under the supervisors in her chain of command. Moreover, none of those witnesses heard any discriminatory remarks from Mendelsohn’s supervisors. Before the trial, Sprint moved to exclude the testimony, arguing that it was irrelevant to the central issues in the case because the employees were not similarly situated to Mendelsohn and the testimony would cause unfair prejudice. The District Court excluded the evidence and ruled that Mendelsohn could offer only evidence of discrimination against employees who were similarly situated to her, meaning that those employees had the same decision maker/supervisor and that there was temporal proximity.

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On December 20, 2007, Governor Strickland signed into law the “Ohio Veterans Package” (Sub. H.B. 372), which is intended to support members and veterans of the armed services. Among other things, the Act exempts the estates of service men and women who die in active service from certain probate fees, exempts retired military personnel pay for military service from the Ohio income tax, and designates Interstate Routes 70 and 71 in Ohio as the “Purple Heart Trail.”

Perhaps the most significant change made by the statute - particularly for Ohio employers - is the addition of “military status” to the list of protected classes under R.C. 4112.02. This change means that employers are prohibited from discriminating against employees based on their military status in the same way that they are prohibited from discriminating on the basis of race, color, religion, sex, age, national origin, ancestry, or disability. The Act defines “military status” as “service in the uniformed services,” including voluntary or involuntary service in the U.S. armed forces, full-time National Guard duty, and duty or training for the Ohio Organized Militia. Questions sure to arise under this new legislation are whether it applies only to current military status, as opposed to veteran status, and whether, in light of the statute’s ban on publishing advertisements for employment that indicate a preference as to military status, it will bar employer preferences in favor of individuals based on their military status.

According to the Ohio Legislative Service Commission’s status report, the Act goes into effect on March 24, 2008. In anticipation of this effective date, Ohio employers are advised to add “military status” to the list of protected classifications in their EEO statements and nondiscrimination/anti-harassment policies.

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In July 2007, the Fourth Circuit Court of Appeals held in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), that, under the Department of Labor’s (DOL’s) regulations and the Family and Medical Leave Act (FMLA), employees cannot waive their rights under the FMLA in a private agreement, such as a severance agreement.  To waive FMLA rights, the Fourth Circuit held that the agreement must first be court- or DOL-approved.  Progress Energy, supported by several other business groups, appealed the decision to the U.S. Supreme Court, citing a split between the Fourth and Fifth Circuits.  On January 14, 2008, the Supreme Court asked the DOL to submit its view on the issue.  This type of request is often a signal that the Supreme Court will review the decision. 

The background of the case is relatively simple.  Taylor, the employee, was terminated by Progress Energy as part of a reduction in force in which past performance evaluations were used to determine which employees to terminate.  Taylor received poor performance evaluations after several health-related absences that Progress Energy determined were not FMLA protected.  Although Taylor tried to have the evaluations changed, she was unsuccessful.  Upon her termination, Taylor and Progress Energy entered into a severance agreement where Taylor received $12,000 in exchange for waiving all rights to litigate.  The agreement did not specifically mention Taylor’s rights under FMLA, but it referenced rights under “other federal laws.”

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On December 26, the EEOC announced a new rule that makes it easier for employers to help retirees maintain adequate healthcare benefits.  In particular, employers that provide retiree healthcare benefits may coordinate those benefits with Medicare benefits without engaging in age discrimination based on the difference in ages between younger non-Medicare-eligible retirees and older Medicare-eligible retirees.

In today’s employment landscape, fewer employers provide retiree benefits.  This forces many retired employees to rely solely on Medicare benefits to cover increasing healthcare costs—at best, a difficult situation.  As a result, many employers are searching for viable ways to continue to provide healthcare benefits to retirees.  The most common and cost-effective way for companies to do so is for employers to coordinate employer-provided benefits with benefits provided by Medicare.  This is accomplished by:

1. supplementing the benefits provided by Medicare up to a specified level of coverage;
2. offering benefits after retirement but only until the retiree becomes Medicare-eligible; or
3. some combination of the two.

Although these approaches seem reasonable, courts questioned their legality under the Age Discrimination in Employment Act.  In Erie County Retirees Association v. County of Erie, a controversial decision issued in 2000 by the U.S. Court of Appeals for the Third Circuit, the practice of treating Medicare-eligible retirees differently than younger retirees was found to violate the ADEA.  In that case, the court held that the health insurance benefits provided to Medicare-eligible retirees and younger retirees must cost the employer the same amount.  Not surprisingly, most retiree healthcare plans violated the ADEA because employers typically spend significantly less on retiree benefits when those benefits only supplement Medicare’s coverage.  Faced with the prospect of spending more money for retiree benefits, many employers considered reducing or eliminating retiree healthcare benefits for both Medicare-eligible and younger retirees.

Perhaps recognizing the dilemma posed to employers that try to do right by their retirees, the Third Circuit recently provided an out: The court ruled that, notwithstanding the Erie decision and objections by the American Association of Retired Persons (AARP), the EEOC has the authority under the ADEA to enact regulatory exceptions to the ADEA's provisions.  Accordingly, the EEOC’s new rule provides an exemption from the ADEA for the longstanding employer practice of coordinating retiree benefits with Medicare coverage.  Employers and labor groups alike support the new rule.

AARP appealed  to the United States Supreme Court the Third Circuit's decision regarding whether the EEOC has authority to create the exception to the ADEA.  It seems unlikely that the Supreme Court will agree to hear this appeal.  If it does and decides in favor of AARP (this is unlikely), the rule's new exception to ADEA will not take effect.

The Supreme Court, however, has heard oral argument in a related case that will likely impact this area.  In Kentucky Retirement System v. EEOC, the Supreme Court considered "whether any use of age as a factor in a retirement plan is 'arbitrary' and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act."  The case involves disability retirement benefits and normal retirement benefits in which service years or a combination of age and service years determines eligibility for both, and thus, age is an indirect factor in determining eligibility.  The Supreme Court will decide if this plan violates the ADEA.  This may or may not impact the decision in Erie.

Bottom line for employers: The ADEA no longer poses an obstacle for employers that wish to treat retirees equitably by supplementing Medicare benefits for Medicare-eligible retirees and providing greater benefits for non-Medicare-eligible retirees.

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As further proof that no good deed goes unpunished, one Ohio appellate court has held that an employer’s affirmative action plan (AAP) may be used against it to prove discrimination. Strange as it may seem, the court’s decision highlights the risks associated with invalid AAPs and gives employers everywhere reason to reevaluate their efforts on this front.

In a reverse race and gender discrimination case, the Montgomery County Court of Appeals held that a public employer’s affirmative action plan could amount to direct evidence of employment discrimination at trial if the plan is found invalid under Title VII of the Civil Rights Act and the Equal Protection Clause of the Constitution. Mitchell v. Lemie 2007-Ohio-5757.

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The importance of leaving your personal life at home–particularly if it involves a penchant for pornography–is amply highlighted by the Second Circuit’s decision in Patane v. Clark, No. 06-3446 (2nd Cir. Nov. 28, 2007).  In Patane, the court upheld a female college secretary’s right to pursue a hostile work environment claim under Title VII and state discrimination laws based on her male supervisor’s pornographic video and website viewing habits.  Apparently oblivious to the development of sexual harassment law over the last 40 years or so, the supervisor–who happened to be the chair of the college’s Classics Department–allegedly viewed sexually-explicit videotapes for one to two hours every day on his office television, which was visible to his secretary through a glass partition.  He also left pornographic videos scattered across his office floor, viewed pornographic websites on his secretary’s work computer, and required her, as a part of her secretarial duties, to open his mail, which–you guessed it–included pornographic videotapes that the supervisor had delivered to his office.

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Last month, the Ohio Civil Rights Commission (OCRC) approved new maternity leave regulations requiring all Ohio employers having 4 or more employees to give each pregnant employee up to 12 weeks paid or unpaid maternity leave, regardless of whether the employee is in her first year of employment and regardless of whether she has previously exhausted any other leave that might have been available to her for non-maternity purposes. On Monday, December 3, 2007, the Joint Committee on Agency Rule Review (JCARR) voted 9-1 to reject the Commission’s proposal.

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Retaliation claims have long been some of the most difficult for employers to defend. What’s more, they become nearly impossible to avoid once employees engage in protected activity; almost any decision an employer makes after that point – short of pay increases and promotions – may prompt a disgruntled employee to challenge the decision as an act of retaliation. A recent Ohio Supreme Court case, however, provides some comfort to employers in this difficult area of the law.

On December 12, 2007, the Ohio Supreme Court held in Green-Burger v. Temesi, 2007-Ohio-6442, that it is not per se – or automatically – retaliatory for an employer to file a lawsuit against a current or former employee after the employee engages in protected activity. In its first consideration of the issue, the Court held that “the filing of a lawsuit by an employer against an employee or former employee who has engaged in a protected activity is not per se retaliatory.” Even more importantly, the Court ruled that, “if an employer can demonstrate that a lawsuit against an employee who has engaged in a protected activity is not objectively baseless, the suit shall be allowed to proceed,” and any attempts by the Ohio Civil Rights Commission (OCRC) to pursue a retaliation case against the employer will be stayed.

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