Work Matters

Fort Worth law goes beyond the Employment Nondiscrimination Act

The Fort Worth City Council voted Nov. 10 to amend the city's anti-discrimination law to make transgender, gender identity or gender expression protected classifications, according to a Nov. 16 report from the Bureau of National Affairs. The vote was 6-3. Gender expression (I had not heard of this one) is defined, according to the report, as a person's innate, deeply felt sense of gender that may or may not correspond to a person's body or the sex listed on his or her original birth certificate. I wrote previously on the federal Employment Nondiscrimination Act (ENDA) which prohibits sexual orientation discrimination. The Fort Worth ordinance amendment protects classifications not protected by ENDA.

Questions to ask when others are stuck

Got a friend  in a dead end job with a jerk boss, or perhaps a colleague at a difficult crossroads? Are they are stuck as to what to do? I have blogged before about Susan Scott's book, "Fierce Leadership: A Bold Alternative to the Worst 'Best Practices' of Business Today." Here's another gem from it: She suggests, in situations like those above, asking the right questions to provoke action and adopting a bias towards action. She advocates clearly identifying the issue and then asking the following questions:

• If you and I were talking six months or a year from today, and nothing had changed regarding the issue, what might you be telling me?
• What else could have happened?
• When you consider that possible scenario, what do you feel?

The "feel" part is crucial. She does not say why, but I think it's because feelings generate emotions, and emotions generate action. Otherwise, people get bogged down in the status quo and keep enduring the pain with which we are familiar. This pain deadens us. This is a remarkable book, one that is well worth a read.

5th Circuit and Texas law part ways on the issue of comparable seriousness

Interesting case on Nov. 4 from San Antonio's 4th Court of Appeals, City of San Antonio v. Pedro Gonzalez. The gist from the court on this gender discrimination case: A 26-year employee gets fired. He was being written up for performance. He was in IT. He claims to have stumbled across his supervisor's computer file containing notes on him. It should have been secured but was not. He prints off the stuff about him and takes it home to read. He tells a female co-worker what he found. She takes a week but reports the unsecured file to management; he does not. She says she accessed only the folder,and unlike her male colleague never opened a document within the folder. He admitted that he looked through the file to see if he was going to be fired; she said she looked at it in order to determine if confidential information was exposed. Anyway, he gets fired, but she does not. He sues for gender discrimination and wins, then the appeals court takes it all away. He argued that the differing treatment supported the verdict. Court of appeals: No, the two of you were not similarly situated (your actions and motivations were different), thus dissimilar treatment is nothing more than dissimilar treatment and not evidence of discrimination. And the court said that it must examine the facts as they appeared to the person(s) making the decision to terminate -- so far, so good for the employer. This follows 5th U.S. Circuit Court of Appeals law. But the kicker under Texas law is that a court must look at whether the policy violation of the male and the female are of "comparable seriousness." Here they were not, so the employer cleared that extra hurdle. My concern is that under Texas law the somewhat fungible, vague and inherently subjective idea of "comparable seriousness" will allow juries and judges to second-guess employer decisions. Lawyers need to be aware that the 5th Circuit and Texas law part company on the comparable-seriousness issue.

Zero tolerance for zero tolerance

A client asked the other day about adopting zero-tolerance policies: An employee commits one act in violation of the anti-harassment policy and gets fired. Or a worker engages in one violation of the ethics code and is shown the door, one transgression of the policy against workplace violence and is cashiered out. My take: I have zero tolerance for zero tolerance policies. They are the easy and lazy way out of often knotty issues. It was H.L. Mencken who remarked that every complex problem has a simple and quick solution, and it is usually wrong. Zero tolerance ties an employer's hands. There are often mitigating circumstances that the boss must take into account. Several years ago I read about a case of a nurse slapping a patient. A zero-tolerance policy is in place; she is fired and sues. Her claim: He was sexually harassing me, I previously asked my company for help, they gave none, so I popped him when he grabbed my breasts. Her slap was protected activity opposing sexual harassment; terminating her for the slap was thus in violation of Title VII. Here's a tough part: Sometimes one of an employer's best and longer-term employee is the one caught in the mindless web of zero tolerance policies. You can't show appropriate mercy. The policy says so.

Lessons about anger from sports and sangha

It was an interesting few days in sports. Elizabeth Lambert played soccer for the University of New Mexico. Last week, among other things she allegedly yanked the ponytail of an opposing player, got tossed from the game and is now on suspension. On Sunday, Mike Smith, the coach of the Atlanta Falcons, allegedly got into a physical altercation with a Washington Redskins player. Lawyers are not all that different. Ever feel like yelling at opposing counsel or daydream about putting an obnoxious witness in her place? We all have. How do we stop ourselves from boorish behavior we may regret? Pema Chodron, in her new book, "Taking the Leap: Freeing Ourselves from Old Habits and Fears" suggests asking this question before flying off the handle: "Will I feel better when this is over?" In other words, if I give into my emotion, will I be better off or worse off? She says that to ask the question is to answer it because aggression breeds aggression. She suggests taking a pause, the length of three breaths. It is hard because habit tells us to react. When we react we feel secure. Anger brings false clarity; it feels good. I get that. But as my mom told me in explaining the facts of life, “A moment's pleasure often brings a lifetime of regret.”

Three questions to help resolve ethics questions

I am a big fan of questions: They focus, they clarify, and they resolve. So, I was struck by the "Three Rules of Thumb" included in the West Point ethics system, as explained by Ronald A. Howard and Clinton D. Korver in "Ethics for the Real World: Creating a Personal Code to Guide Decisions in Work and Life." If a cadet can answer all of the following three questions "no," then a decision passes muster. If not, it is not put into action. Here they are:

1. Does this action attempt to deceive anyone or allow anyone to be deceived?

2. Does this action gain or allow the gain of privilege or advantage to which I or someone else would not otherwise be entitled?

3. Would I be dissatisfied by the outcome if I was on the receiving end of this action?

Questions are more valuable than statements because statements are static. They are like fish on ice at the local market. A question engages, provoking thought. I think that company or firm mission statements should consist of questions, not the blah, blah, blah of a statement.

Economic dependence a key factor in assessing independent-contractor status

It's a tough economy. One solution is to use independent contractors, not employees -- no muss, no bother. When a business no longer needs them, off they go. That's a nice theory, but it's not the way things work in the 5th Circuit. On Oct. 12, the 5th Circuit decided Cromwell, et al. v. Driftwood Electrical Contractors Inc., et al. The allegations in the case were as follows: Cromwell and another guy worked for Driftwood splicing cables post-Hurricane Katrina. They worked for 11 months, 12 hours a day, 13 days on and one day off. They provided their own tools and work trucks with one of them making an investment in these items of $50,000 and the other $16,000. They provided their own insurance and paid their own taxes. But they were so busy for Driftwood that they could not, as a practical matter, work for anyone else. That allegation made all the difference to the 5th Circuit, which reversed an award of summary judgment to the defendants in a Fair Labor Standards Act suit, in which Cromwell and his co-plaintiff claimed they were employees and thus entitled to overtime. Why this decision from the 5th Circuit? While there were facts supporting a finding of independent contractor status, the key issue, according to the court, was that the plaintiffs "were economically dependant upon" the defendants. Lesson: An employer's lawyers should not get suckered into thinking his pile of facts bolstering independent contractor status always will outweigh economic-dependence factor. It won't.

5th Circuit: Evidence of the alleged harasser's homosexuality is a threshold issue in a same-sex sexual harassment case

To establish a claim of same-sex sexual harassment, must a plaintiff show that the harasser is homosexual and that the harassment was motivated by sexual desire? By a 2-1 vote in Love v. Motiva Enterprises LLC, the 5th U.S. Circuit Court of Appeals said yes on Oct. 16. Here are the allegations, according to the 5th Circuit’s decision to affirm the trial court’s dismissal on summary judgment: Connie Love and Jeanne Shirey worked together at Motiva Enterprises. Shirey ran her finger under Love’s bra strap and her underwear near her hip, while at the same time calling her "fat" and "disgusting," going so far as to allegedly tell here that she was "a sorry excuse for a woman," "useless as a woman," a "fat cow," and saying "you think that's a body you have." Shirey also rubbed Love's back. The dissent wrote that Love’s case should not have gotten tossed on summary judgment because, regardless of whether Shirey was a homosexual, these comments were directed at her "because of sex" and that's all Love needed to prove. The majority said there was no evidence that Shirey was homosexual and that was that. For now, evidence of the harasser's homosexuality is a threshold issue.

Set up incentives using reality, not wishful thinking

How should employers create incentives for their employees and align their interests with the company's? Check out "The Five Traps of Performance Measurement," by Andrew Likierman in the October 2009 issue of the Harvard Business Review. One key trap is when an employer focuses on just one metric to measure performance. He cites a firm that discovered its associates were gaming the system. They were measured solely by billable hours. Guess what?  They padded their time. The firm changed from one metric to several: yes, billable hours, but also other factors from excellence in work to mentoring efforts to contribution to the firm as an institution. Is it harder to measure lawyers on more than one metric? Yes. More time consuming? Yes. But, Likierman believes, it's worthwhile. He also looks at Southwest Airlines, which expanded one metric (timeliness of gate closings) for one position (gate agents) to several other positions whose performance impacted the achievement of the metric (ticketing staff, gate staff, loaders). His bottom line: "To create an effective performance measurement system, you have to work with the fact [that metrics will be manipulated] rather than resort to wishful thinking and denial." As firms and other employers crawl out of the wreckage of 2008-2009, let's see how they respond to performance measurement issues.

2nd Circuit takes on delegation of hiring obligations to independent contractors

We sometimes lose sight of the basics. Look at a Sept. 10 case from the 2nd U.S. Circuit Court of Appeals, Halpert v. Manhattan Apartments Inc. A plaintiff sues for age discrimination, saying he was not hired because of his age. The trial court throws the case out because the person responsible for the employer's hiring decision was an independent contractor. The appeals court says an employer cannot delegate out its obligations under the law; if the "independent contractor" had apparent or real authority to make hiring decisions, then the employer can be held liable for a discriminatory decision. The court took pains to point out what an employer is not liable for: namely, hiring decisions made by an independent contractor who is hiring for his or her own company but who an applicant unreasonably and incorrectly believes has authority to make hiring decisions on the employer's behalf. One side note: The plaintiff in this case represented himself. Got to admire the grit.