Employment Law Updates

U.S. SUPREME COURT CLARIFIES WHEN EMPLOYER IS LIABLE FOR SUPERVISOR’S DISCRIMINATION

The U.S. Supreme Court recently decided that an employer can be liable for discrimination if a supervisor discriminates against an employee and that act later plays a motivating factor in an adverse employment action. Staub v Proctor Hospital, (March 1, 2011).   Staub was an employee of Proctor Hospital as well as a member of the U.S. Army Reserves.  His immediate supervisors were vocal about their dislike for the military and treated Staub negatively as a result; they would make comments and at one point asked a co-worker to help them get rid of him.  Ultimately, Staub received a written warning from his supervisors for violating a rule that he claimed did not exist.  Approximately three months later, one of Staub’s co-workers complained to the Chief Operating Officer and to Buck, the Vice President of Human Resources, that Staub was abrupt and frequently unavailable.  Buck directed Staub’s supervisors to address these issues with Staub. They failed to do so.  Three weeks later, his immediate supervisor informed Buck that Staub had violated the terms of his written warning.  Based on that accusation and Staub’s personnel file, Buck decided to terminate Staub.  At the time Buck decided to terminate Staub, she was unaware of the supervisors’ discriminatory conduct and their bias against Staub.

Staub sued Proctor Hospital for violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  He claimed that, even though Buck made the decision to terminate Staub and that she lacked any discriminatory animus towards him, she relied on information from his supervisors that was motivated by their discrimination and, therefore, her decision to terminate was discriminatory.  The U.S. Supreme Court agreed with Staub.  They stated that an employer is at fault if its agent commits an act based on discriminatory animus. Further, supervisors are agents of the employer.  Therefore, if a supervisor commits an act based on discriminatory animus that starts a chain reaction which ultimately results in an adverse employment action, the employer is liable – regardless of whether the employer knew about the bad act at the time it decided to terminate or demote the employee.

Employers should take the necessary steps to ensure their supervisors and managers are aware of this new standard.  Further, all employees should be properly trained on the employers’ equal opportunity programs and how to report acts of discrimination.  As you can see from this decision, even a good-faith decision by a high ranking HR professional will not insulate an employer from the bad acts of immediate supervisors.

SERVICE ANIMALS UNDER THE ADA – REVISED REGULATIONS EFFECTIVE ON MARCH 15, 2011

Is your business open to the public and therefore subject to regulation under the Americans with Disabilities Act (“ADA”)?  If so, you should know that there are new regulations concerning service animals, which take effect on March 15, 2011.  The revised regulations clear up the law as to what is a service animal and offers guidance for those businesses serving disabled patrons. 

Under the revised regulations, service animals are dogs, or in some circumstances miniature horses, that are individually trained to work or perform tasks for a disabled person.  Other animals, such as monkeys, lizards, cats, or snakes, are not service animals regardless of whether they have been trained. 

The service animal must be house trained, and it must remain leashed while in your place of business unless the handler’s disability or the nature of the service animal’s work prevents the use of a leash.  If excused from the leash requirement, the handler must still retain control of the service animal.  In addition to these requirements, a miniature horse must be of an appropriate type, size, and weight so that it may safely operate in your specific business facility.  If these conditions are not met, an employee may legally exclude the service animal.

Employees may not ask about the nature or extent of an individual’s disability; however, if the individual’s disability and the service animal’s role are not obvious, an employee may ask two specific questions.  First, an employee may ask whether the service animal is required because of a disability.  Second, an employee may ask what type of task the service animal is trained to perform.  Employees may not legally request documentation or charge a fee for the service animal. 

Keep in mind that these laws are related to businesses open to the public; ADA regulations related to employment issues are separate.

If you have questions about what kinds of service animals you must allow in your place of business, you should contact an attorney who has experience with the ADA.

NO-REHIRE POLICY DRAWS THE IRE OF THE EEOC

During the recent economic downturn, many employers were forced to put in place early retirement plans.  Many such plans include a policy that prevents participating employees from reapplying to or being rehired by the employer.  Such policies are commonly referred to as “no-rehire” policies.  While there is often a good business reason for such a policy, employers should carefully consider when to implement it.

 

For example, last year the Equal Employment Opportunity Commission (EEOC) filed a lawsuit in federal court alleging that a no-rehire policy implemented by AT&T violated the Age Discrimination in Employment Act (ADEA).  The EEOC’s theory is that the denial of reemployment resulted in a disproportionate number of older workers (40 and older) not having the same opportunity to apply for reemployment, in violation of the ADEA.  EEOC Acting Chairman Stuart J. Ishimaru said about the case: “We’ve been taking a new and hard look at age discrimination recently, and we’re intent on enforcing the ADEA strategically and vigorously.  This particular case highlights the Commission’s commitment to combating age-based disparate impact discrimination.”

 

To avoid a similar fate, employers should consult with an experienced employment attorney before organizing and implementing an early retirement plan.

NEW POSTERS AND POLICIES NEEDED TO ADDRESS GENETIC INFORMATION DISCRIMINATION

The Genetic Information Nondiscrimination Act (“GINA”) makes it illegal for employers to discriminate on the basis of genetic information.  Employers will be required to include this restriction in their EEO posters and should update their EEO policies and statements accordingly.  In addition, employers should review their processes to ensure they are not requesting genetic information unless the request is limited to specific information needed.  Genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.  GINA goes into effect on November 21, 2009.  Updated posters can be obtained from the EEOC.

WHY SHOULD EVERY EMPLOYER HAVE AN ANTI-HARASSMENT POLICY?

Every football fan has heard it a thousand times: “The best defense is a good offense.”  But did you know the cliché applies equally well to the employment arena?  In 1998, the U.S. Supreme Court decided two landmark cases that provide an affirmative defense to employers for sexual harassment.  If the employer can show that it had an effective anti-harassment policy in place at the time of the alleged harassment, then the employer can take advantage of this defense so long as the reporting employee was not fired or subjected to an otherwise "tangible employment action."

Keep in mind that an anti-harassment policy should be in writing, and your employees must be aware of the policy and how complaints should be reported.  By being proactive and implementing an effective anti-harassment game plan, you will discourage inappropriate conduct and lessen your potential liability in an easy and cost-effective manner.

AN EMPLOYEE'S ABILITY TO REPORT DEPENDS ON YOU

“Coulda, woulda, shoulda.”  That’s the message from an Oregon federal court judge, who recently ruled that an employer sued for sexual harassment cannot defend the claim by arguing that the victim failed to report offensive conduct unless the employer can establish that (i) its anti-harassment policy includes instructions for reporting, and (ii) the policy was disseminated to the employees before the need for reporting occurred.  We recommend that you review your sexual harassment policy to make sure it includes instructions for reporting, and that the reporting process is not too burdensome for employees.  For example, employees should be able to report verbally or in writing, and while the employer may prefer to direct complaints to a particular staff member, the policy should state that the employee may report to any member of management.  Also, review your procedure for disseminating your anti-harassment policy.   Make the policy part of your employee handbook and require the employee to sign an acknowledgement of receipt, or provide the policy with a signature page as part of the orientation process.  However you decide to disseminate it, make sure you can show that the employee “shoulda” reported it!