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In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.

On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller wrote an editorial titled "Gay rights and wrongs." In his piece, Miller compared the gay rights movement to the civil rights movement and expressed concern that Medical College of Ohio employees who became University of Toledo employees following a 2006 merger were not offered domestic-partner benefits that were available to other University employees. Dixon responded to Miller's piece with her own op-ed column, "Gay rights and wrongs: another perspective," on April 18, 2008. Dixon rejected Miller's comparisons of the gay-rights and civil-rights movements stating,

"[a]s a Black woman who happens to be an alumnus of the University of Toledo's Graduate School, and employee and business owner, I take great umbrage at the notion that those choosing homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle as evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few...."

Dixon also responded to Miller's comments regarding health insurance, stating, "[t]he reference to the alleged benefits disparity at the University of Toledo was rather misleading....To suggest that homosexual employees on one campus are being denied benefits avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans."

Dixon was placed on paid administrative leave on April 21, 2008, as a result of her op-ed column. President Jacobs wrote a guest column in response to Dixon's op-ed column, on May 4, 2008. Jacobs repudiated Dixon's opinion on behalf of the University and emphasized the University's position on diversity. Jacobs also highlighted the various programs at the University aimed at expanding and supporting diversity.

Dixon's disciplinary hearing was held on May 5, 2008. Dixon read a prepared statement reiterating the beliefs stated in her op-ed column, and she stated she was speaking as a private citizen. She also claimed she had never discriminated based on sexual orientation, and accused the University of treating her differently than other employees. President Jacobs issued a termination letter to Dixon on May 8, 2008.

On December 1, 2008, Dixon filed suit in the U.S. District Court against the University, President Jacobs, and Vice President for Human Resources and Campus Safety William Logie, alleging First Amendment and other violations. The District Court granted the Defendant's motion for summary judgment. Dixon filed an appeal to the Sixth Circuit Court of Appeals.

The Court analyzed Dixon's claim of First Amendment Retaliation specifically focusing on whether her speech was protected. Dixon needed to show the following: 1) her speech touched on a matter of public concern; 2) that under the balancing test announced by the U.S. Supreme Court in Pickering v. Board of Education, her "free speech interests outweigh the efficiency interests of the government as employer"; and 3) that the speech was not made pursuant to her official duties." The parties agreed Dixon was speaking on a matter of public concern, but the University argued Dixon could not satisfy the Pickering requirement, and was speaking in her official capacity.

The University argued Dixon's speech fell within the presumption set forth by the Sixth Circuit Court of Appeals in Rose v. Stephens, which states "where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law." The evidence established Dixon was delegated appointing authority and was responsible for recommending, implementing, and overseeing policy. Moreover, Dixon's comments implying that homosexuals should not be afforded the same protections as African-Americans is in direct contradiction to several University policies developed and promoted by the Human Resources Department. The Sixth Circuit found the University's interests outweighed Dixon's interest as a matter of law and affirmed the district court's grant of summary judgment.

Reminders
Government employers should understand that the First Amendment will not prevent them from disciplining employees serving in policy-making positions for public speech that contradicts the employer's policies. Such employers, however, should be careful to consider the disruption caused by the employee's speech before taking disciplinary action. 

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Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.

That requirement seems reasonable -- except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be job related and consistent with business necessity.

On November 17, 2011, the EEOC posted an informal discussion letter on its website indicating that high school diploma requirements likewise may have a disparate impact on individuals with disabilities. According to the EEOC, some individuals with learning disabilities have difficulty passing end-of-course assessments and cannot obtain a high school diploma; therefore, they cannot obtain jobs which require the applicant have a high school diploma.

The EEOC considered the possible impact of high school diploma requirements under the ADA and provided the following advice to employers:

[I]f an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.

It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant.

The EEOC informal discussion letters are not binding as law and certainly are not binding on courts. There is room for good faith argument about whether the EEOC has properly applied the disparate impact theory of discrimination to this issue. Nevertheless, the discussion letter does indicate how the EEOC will likely rule in a charge on these facts. Therefore, employers are wise to evaluate whether a high school diploma really is necessary to perform the essential functions of any job for which it is being required. Even in those situations where the high school diploma requirement can be justified, employers will still need to consider in any case where a person is being excluded for not having a diploma and information is brought to light that a disability may be the reason whether a reasonable accommodation can be provided that would permit otherwise qualified individuals with disabilities to perform those essential functions.

Of course employers should continue to be cautious about the use of high school diploma and similar educational screening tools in light of the possibility of race discrimination claims.
 

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According to statistics released by the Equal Employment Opportunity Commission (“EEOC”) earlier this week, the Agency received over 7% more charges in 2010 than it did the previous year—99,922 as compared to 93,277.  Indeed, the number of charges filed were up in every category.  The FY 2010 enforcement and litigation statistics, which include trend data, are available online here.

Such statistics are not surprising in light of the large number of layoffs that occurred in 2010, coupled with the difficulties terminated employees had in finding new employment in a down economy.  What is more interesting, however, is that, for the first time since the EEOC became operational in 1965, race was not the most prevalent category of alleged discrimination. Rather, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequent basis for filed charges. This should serve as a clear reminder to employers that they must be particularly careful in dealing with employees who have filed charges or made internal complaints and understand that retaliation is prohibited even if the underlying charge or complaint lacks merit.

It is also noteworthy that, in the first year of its enforcement, the EEOC received 201 charges under the Genetic Information Nondiscrimination Act (“GINA”).  As employees become more familiar with the provisions of this Act, it is likely that the number of charges under it will increase considerably in years ahead.

There are signs that the economy will rebound in 2011, which would be a welcome relief to all who have felt its impact.  Of course, whether that actually occurs or not remains to be seen.  In the meantime, employers should be vigilant in making sure their employment decisions are nondiscriminatory because there is an increased likelihood in difficult economic times that these decisions will be challenged.

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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 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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