Work Matters

How should employers handle offensive language from an employee?

I got to thinking about Rahm Emanuel's reported comment that some Democratic legislators are "retarded." Calls for his firing soon arose, as described in a column from the Denver Post. I see these issues arise in the workplace. Three points, the first made by the column: What was the intent behind the statement? None of those to whom it was directed are mentally challenged. The term, according to the columnist, is an unfortunate one that some people take with them from childhood into adulthood. The columnist compares it to use of the "n" word directed towards an African-American. When that word is used, there is no doubt as to intent. A second point from me: Always ask, what is a proportionate response to the employee's conduct? This second question is twisted together like a pretzel with the first question. Third, I think employers should ask whether the use of an improper word is an aberration or a pattern. Before firing someone, ask these three questions.

Supervisors can't stick their heads in the sand to avoid knowledge of harassment

Under current case law on harassment, an employer is deemed to know of the harassment if a supervisor knew or should have known about it. On Dec. 4, 2009, in a summary judgment case, Duch v. Jakubek, et al. the 2nd U.S. Circuit Court of Appeals said that an alleged ostrich-like attitude of self-delusion by a supervisor would not shield an employer from knowledge and thus potential liability. The court summarized what the supervisor knew or was told:

• He knew that the employee sought a change in her work schedule when she was assigned to work alone with a certain male employee;
• He learned from other employees that she did so to avoid working alone with this employee;
• This male employee told the supervisor he had done or said something that he should not have done or said;
• He knew this male employee had engaged in sex-related misconduct towards females in the past; and (here is the kicker)
• When the supervisor spoke to the female employee about the male employee, she became emotional, told him "I can't talk about it," whereupon he answered "That's good because I don't want to know what happened." The supervisor then changed the female employee's schedule so she would not have to work with the male.

In reversing the summary judgment by the trial court, the 2nd Circuit said that a reasonable jury, from these facts, could conclude that the employer had at least constructive knowledge of the alleged sexual harassment directed at the female employee:

In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees. We merely recognize that . . . when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance — as [this supervisor] is alleged to have displayed — will not shield an employer from liability under Title VII.

Every employer, supervisor and manager needs to learn this mantra (which comes courtesy of one client's organization): Knowledge requires action. One other point lawyers should teach employer-clients early on in the representation: On summary judgment a court draws reasonable inferences from facts to the benefit of the nonmoving party (generally the employee, not the employer). Why? The American system values a litigant's day in court to prove his or her case. This standard protects us all, and a defendant will value it when its time comes to be the plaintiff in some commercial dispute.

Will 6th Circuit case result in cert grant, end employee-rights run at high court?

Simple facts: A female employee files an EEOC charge against her employer, claiming gender discrimination; three weeks later her fiancé, who also works for the same employer, is fired. He says it’s in retaliation for the filing of the charge; the employer says it’s for legitimate reasons. Complex issue: Can he sue for retaliation even though he is not an employee opposing an unlawful employment practice or participating in the EEOC process? On June 5, 2009, in Thompson v. North American Stainless LP,a sharply divided en banc 6th U.S. Circuit Court of Appeals said no, focusing on the section of Title VII outlawing retaliation against those who have opposed unlawful discrimination or "participated in any manner" in an investigation or proceeding under the law. By contrast, the dissent focused on the language in the law affording protection to employees who are "aggrieved," which covers more employees than those who oppose or participate. Last week the U.S. Supreme Court asked the Office of the Solicitor General office to chime in on whether it should grant cert. I hope the court does hear the case. This is intellectually interesting. The last two retaliation decisions by the high court were pro-employee. The court has been solidly behind employees in cases involving access to an employee's rights. Will this case turn out to be an extension of those or prove a bridge too far?

What would Buddha blog?

Writing a blog prompts me to think about how others write them and what (if any) effect they have. As to writing, an interesting post on Buddhism and blogging from "The Blog Herald" advocates that bloggers follow Buddhist principles of right action. Bloggers should better people's lives and selflessly share knowledge; consider any bad effects a post may have on another; eschew plagiarism; give the endeavor their all; and see things clearly, as they are. As to effect, check out the "Race to the Bottom" blog, on which a post talks about the impact of blogs on the judicial process. This blogger argues that law clerks use blogs as research and that some blogs influence judges. I recall the old saying that U.S. Supreme Court justices read the newspapers; maybe blogs are the modern substitute. The post cites law review articles on the ethics of all of this, presuming it takes place. While I enjoyed the post, I have doubts about whether most judges and their clerks are surfing the Web and exchanging links. But both posts, in their own ways, raise issues about the ethics of legal blogs. We will see more discussions, not fewer, as social media pervades our lives.

Claim or no claim: the ADA, barbiturates and questions

Let's play claim or no claim. A temporary employee with a good work record applies for a regular, full-time job. He takes a drug test that comes up positive for barbiturates. Employer questions him, and he says he has a prescription for them because of his epilepsy. The person who would be his manager (and who is the decision-maker on his hiring) learns this information. The company MD clears the temp employee for a regular, full-time job. The manager never sends out the offer letter. The employee is not disabled but sues under the ADA for being rejected for the job because of a prohibited medical inquiry -- not the drug test per se but the questions following the drug test. Claim or no claim: Can a nondisabled individual state a private cause of action for a prohibited medical inquiry in violation of §12112(d) of the ADA? The answer: yes, according to a Jan. 11 opinion from the 11th Circuit, Harrison v. Benchmark Electronics Huntsville, Inc., from which the foregoing facts were taken.

Become aware of the power of the hidden brain

"The Hidden Brain: How Our Unconscious Minds Elect Presidents, Control Markets, Wage Wars, and Save Our Lives" by Shankar Vedantam caught my attention. His chapter on group decision-making is excellent. On Sept. 11, 2001, a company occupied two floors in the second tower. Everyone except one person on one floor perished; everyone except one person on the other floor lived. Why? Our unconscious minds tell us how to act. When the hidden brain (I call it the reptile brain; we developed it tens of thousands of years ago) confronts danger, it seeks consensus from other members of the tribe. Why? "Sticking with the group in our evolutionary history usually offered safety,” writes Vedantam. People turn to the group, just like our ancestors, losing our autonomy and abdicating our decisions. Vedantam theorizes that is what happened on the floor where 99 percent lost their lives. There may have been a desire to develop a shared narrative on what was occurring. What was different on the floor where all but one lived? One person could have seen that the other tower had been attacked and sensed something was very, very wrong. He then urged his colleagues to get out and get out now. Others agreed. Vedantam writes, "Being the second person to step forward is infinitely easier than being the first." His point: Those who died and those who lived thought they were making autonomous decisions, but they weren’t. By the way, Vedantam makes a point I want to stress: His book is not a value judgment on those who lived and those who died. It could have been that leaving turned out to be wrong, not right. His point is that people need to recognize that why we do what we do is not always within our control. Here’s an example: I am tapping this out at a bar. Last month, a huge, explosive sound came from the ceiling. The vents emitted something, maybe smoke, maybe dust. What did I do? I looked at my barmates and the bartender and froze in place. (It turned out a belt in the HVAC system broke.) What are the lessons for lawyers? Juries make decisions this same way. They often look to a leader in deliberations, following instead of leading. In voir dire, look for the person who could be a leader, someone who will sway other jurors against you. Strike that person.

The FMLA does not cover faith-healing trips that include a vacation aspect

A woman takes her seriously ill husband to their native country, the Philippines, to visit a priest at a Catholic church who is renowned for his "miraculous healing" abilities. On the trip she assists him with his basic needs, provides psychological comfort, carries his luggage, pushes his wheelchair and administers his medications. And, since they are home in the Philippines, they spend around 40 percent of their time visiting family and friends. She is gone seven weeks. Her employer fires her for the absence; she claims the leave was FMLA protected. Who wins? Her employer. Why? Her husband was not seeking medical treatment but a miracle. For FMLA protection to kick in, the relative for whom the employee is caring must be receiving treatment from a health-care provider as defined in the regulations. A priest is not included. On Jan. 4, the U.S. District Court for the District of Massachusetts in Tayag v. Lahey Clinic Hospital Inc. went further and noted that even if the FMLA protected caring for a sick spouse on a faith-healing trip, that coverage was lost because "the FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation." The opinion has a good discussion of "caring for," as well as addressing this novel issue. It’s worth a read.

Of slacks and sex discrimination

On Jan. 21, the 8th U.S. Circuit Court of Appeals joined other courts in saying that sexual stereotyping is a violation of Title VII. The 5th U.S. Circuit Court of Appeals has not addressed that issue yet, but here is a modest prediction: It will adopt the theory. In Lewis v. Heartland Inns of America, et al., a female hotel desk clerk has, as she characterizes it, "an Ellen DeGeneres kind of look." She wore loose-fitting clothing, including men's button-down shirts and slacks. (Historical footnote from me: The word slacks started in Dallas with the Haggar Co., whose founder wanted to provide men with pants for "slack time.") A manager did not like this look, supposedly saying that the employee lacked the "Midwestern Girl look" and that female desk clerks needed to be "pretty." The clerk got fired and sued. The appeals court, 2-1 said the clerk stated a claim for sexual stereotyping. The dissent, in what I call the "What has the world come to?" approach, wrote this: “Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification. . . . In my view, an employer's decision to hire or fire based on a person's physical appearance is not discrimination ‘because . . . of sex’ unless it is a pretext for disadvantaging women candidates.” We will see.

What firms can learn from football

What do Sean Peyton, Rex Ryan, Jim Caldwell and Brad Childress have in common? They are the four coaches whose teams will be playing this weekend in the NFC and AFC championships. Know what else? Each of them has a coaching style that is very 21st century: They don't yell, shout or demean their players. They would never, as one coach did, end practice only when the players became ill. Look at Childress,the coach for the Minnesota Vikings. His team had two weeks off before they played the Dallas Cowboys. Childress gave them the first week off, telling them that he trusted them to be ready to give it their all in week No. 2 before the Cowboys game (and we know how that turned out). These coaches do not micromanage. They lead. They are motivators, not deciders. They understand that most players are motivated intrinsically, not extrinsically, by the satisfaction of a job well done. This fits in with the idea behind Daniel Pink's insightful new book, “Drive: The Surprising Truth About What Motivates Us.” Pink calls the old style of motivation (the carrot and the stick) Motivation 2.0. He says those days are over, replaced by what he calls Motivation 3.0:

Motivation 2.0 assumed that if people had freedom, they would shirk — and that autonomy was a way to bypass accountability. Motivation 3.0 begins with a different assumption. It presumes that people want to be accountable — and that making sure they have control over their task, their time, their technique and their team is a pathway to that destination.

Pink applies this idea to law firms, arguing that the billable hour is a relic of Motivation 2.0. Listen:

[The] billable hour has little place in Motivation 3.0. For nonrountine tasks, including law, the link between how much time somebody spends and what that person produces is irregular and unpredictable. . . . If we begin with an alternative, and more accurate, presumption — that people want to do good work — then we ought to let them focus on the work itself rather than the time it takes to do it.

Different times call for different assumptions. This weekend of championship-caliber football is a reminder.

Lies your nerves tell you

I have been fortunate enough to try a fair number of suits. Many younger lawyers have not. One young lawyer I know may have a case go to trial soon, and she is concerned. She believes that she is not a slick lawyer, unlike her opposing counsel. She mentioned a few other worries. Here are some thoughts for any attorney facing an anxiety-provoking situation.

• The race is to the likeable, not the slick. For my generation the TV show that made our hearts race was “L.A. Law.” For this generation, the it series could be the new show, "The Deep End." Both featured lawyers in fabulous garments, looking thin and gorgeous. But these things, while nice to have and be, don't matter. Chad Higgins and Timothy Judge are cognitive researchers. Their experiment: Why are people hired for a job? The answer: likeability. Those perceived to be pleasant people had an edge.
• Mistakes are OK. We all think we are at the center of our storyline, our own universe. We are not. A common human fear is that we will mess up and everybody will be looking at us. But they won't. Richard Wiseman ran an experiment with actresses dubbed Sarah and Emma. Wiseman had them demonstrate to a group how a new blender worked. Sarah was flawless, Emma less so but still capable. The one more likeable and thus better able to sell the blender? That's right: Emma.
• If you make a mistake, not everyone will be looking at you. The Barry Manilow study done by Thomas Gilovich should provide some comfort to all lawyers on the eve of a big presentation. Gilovich had a student attend a meeting wearing a very uncool Manilow T-shirt. The student would be the object of attention because he came late to the meeting. The student thought he or she would be gawked at and the center of attention. In reality, only 20 percent of those at the meeting noticed. This is called the "spotlight bias."

Want to learn more? Read Wiseman's book, from which these examples are taken: "59 Seconds: Think a Little. Change a Lot."  Now, young lawyers, go out there and try those cases!