Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

The American Civil Liberties Union (ACLU) recently filed a notice of claim against the Rocky Mountain Academy of Evergreen in Colorado alleging it let go of a teacher because she pumped breast milk on the job. The school has 90 days to respond to the claim, after which point a formal lawsuit may be filed. Colorado passed a law which requires employers to make reasonable accommodations to allow mothers to pump milk while at work. Minnesota has a similar law.

Minnesota Statute § 181.939 states, employers must provide reasonable unpaid break time each day to a nursing employee who needs to express breast milk for her infant child, unless it would unduly disrupt the operations of the employer. The break time can be at the same time as other break times already provided to the employee. Minnesota employers must also provide an employee a private room or location to use to express her milk. A toilet stall is not considered sufficient under the law for this purpose.

In addition to Minnesota state law which provides this benefit to nursing mothers, my law partner blogged last year about the changes caused by President Obama’s healthcare reform, one of which provided unpaid lactation breaks for nursing mothers.

It is important for employers to consider any potential discrimination claims before taking adverse employment actions against employees. Employment actions must be grounded in facts and evaluated based on legitimate needs. Presently, the Colorado employer is claiming the employee was not retained because her position was changed. I will update you as this case unfolds.

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Last week, the United States Supreme Court ruled in favor of an employee who had alleged he was terminated from his job as a technician at a hospital, due to his military service.  Staub v. Proctor Hospital. The employee claimed he had been discriminated against in violation of the Uniformed Services Employment and Re-employment Rights Act (USERRA).

Mr. Staub argued that the anti-military hostility of two supervisors had wrongly influenced the final decision-maker, who made the decision to terminate his employment.  The case is troubling because there was no proof the decision-maker was aware of the supervisors' hostility towards Mr. Staub’s military service, or even that she shared in the supervisors’ hostility towards military obligations.   The Court stated, “We therefore hold that if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if the act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”   The Court aggregated the supervisors’ military hostility and attributed it to the decision maker and her decision to terminate Mr. Staub.  The Court remanded the case to the Seventh Circuit to determine if a new trial was warranted.

Mr. Staub’s legal argument of the case is known as a "cat's paw" theory.  The theory stems from a 1600’s fable by Jean de la Fontaine, where a monkey induces a cat through flattery, to extract roasting chestnuts from a fire.  After the cat has removed the chestnuts, burning his paws in the process, the monkey runs off with the chestnuts and leaves the cat with nothing but his burned hands.  Translated to employment law, an employer can be held liable for discrimination when it can be established the final decision-maker was influenced to take an adverse employment action against an employee (such as termination in the Staub case) through the actions of a lower-level employee who has discriminatory motives.

The difficulty in the case, lies in determining what was the motivating factor of the employer in deciding to terminate Mr. Staub’s employment. The lower court noted, the internal investigation conducted by the employer could have been “more robust.”  This means there were skimpy facts on the record to support that the termination was for any other reason, but for the actions taken by the supervisors who had exhibited military hostility.  This affords a small nugget for employers to take away from the case, when assessing termination decisions in the future. 

Employers should:

• Make sure their workplace investigations are independent and thorough.  This is especially true if an investigation concerns allegations of discrimination against a supervisor.
• Accurately document work performance issues and conduct annual performance evaluations of both employees and supervisors.
• Review and update workplace complaint procedures and make sure everyone is aware of them.
• Document all employee complaints and be sure to include documentation regarding the outcome of the complaint.
• Train supervisors on USERRA.

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This week the EEOC filed discrimination charges against Kaplan Higher Education Corporation, alleging the use of credit checks to screen job applicants was discriminatory. Kaplan had rejected job applicants based on their credit history since at least 2008. According to EEOC, the practice had a disparate impact on black job applicants, and was not job-related or justified by business necessity.

This is actually the second recent claim against an employer who used credit checks to reject job applicants. Last month, similar charges were filed in federal court in a class action lawsuit against the University of Miami. There the job applicant had been offered a job, and quit her previous position. She was then informed she would not be hired due to her credit score.

Plaintiff’s attorneys are actively seeking class action clients who may have been rejected for a job, based on their credit score. According to the EEOC, the problem with using credit checks to screen applicants is that they are not recognized as predictors of job performance. Given the present economy many consumers have struggled with debt and their credit scores have suffered. Coupled with potential errors in credit reports, their use in making job decisions should be carefully scrutinized.

Unless an employer is hiring a CFO, or an accountant, credit scores simply do not meet the job-relatedness and business necessity tests necessary to avoid discrimination charges. Employers should rely on more reliable predictors of job performance to make their 2011 hiring decisions.  This may mean different screening and hiring processes based on individual job descriptions.

The EEOC reports, “Workplace discrimination filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.” I predict this number will increase in 2011, and we will see more discrimination claims concerning the use of credit reports as well as an expansion to include other automatic job screening exclusions such as the use of criminal arrest records that don’t result in a conviction.
 

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Every Sunday, I receive the Parade magazine in my newspaper. It typically has some interesting articles or interviews with celebrities. This summer, it had an interesting article on workplace bullying. Parade magazine did an informal poll on their website asking, “should workplace bullying be illegal?” The results:

Should workplace bullying be illegal?   Yes = 93% and No = 7%

Bullying is not uncommon, whether it is on the playground, in high school or in the workplace. Workplace bullying can cause low morale, increased employee turnover, and decreased productivity, none of which is a positive contribution to the workplace. There is even an employee-advocate group called Workplace Bullying Institute (WBI). WBI defines workplace bullying as “repeated malicious mistreatment, verbal abuse, or conduct that is threatening, humiliating, or intimidating, or that interferes with work.” Workplace bullying is different from harassment and discrimination which is unlawful under state and federal laws, though there can be overlap. General workplace bullying is not covered by harassment or discrimination laws and instead targets someone without regard to their sex, race, national origin, color, religion, etc. Presently, seventeen states have introduced bills which would allow victims to sue for damages resulting from workplace bullying.

In Minnesota, it is possible for employees to seek recovery for workplace bullying under the common law claim of “intentional infliction of emotional distress.”

So, what should an employer do to prevent or address workplace bullying?

1) Implement a general code of conduct policy.
2) Train employees on what is acceptable workplace behavior.
3) Train supervisors to recognize and address bullying when it occurs.

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It seems like I have been blogging a lot recently about discrimination cases, but new and interesting cases keep coming across my desk. Here is yet another. Earlier this spring, the Minnesota Court of Appeals interpreted a 22-year old amendment to the definition of “marital status” under the Minnesota Human Rights Act (MHRA). The court found for the plaintiff in Taylor v. LSI Corporation of America, (Minn. App. 4/27/2010) (pdf), stating in order to have an actionable claim of marital status discrimination, it is not necessary to show the alleged discrimination was a direct attack on the institution of marriage. In Taylor v. LSI Corporation of America, Ms. Taylor claims she was let go from her job just because her husband, who was in management at LSI, was being forced to resign his employment with the corporation.
 

The court’s decision is based on a 1988 legislative amendment to the MHRA which defined marital status in employment cases to include “protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.” Minn. Stat. § 363A.03, subd. 24. The Court wrote, “The crux of appellant's claim is that LSI terminated her based on the identity and situation of her spouse, a co-employee whose forced resignation was occurring at the same time. This claim falls squarely within the statutory definition of "marital status."”

The case has been remanded back to the District Court for further proceedings.

What should employers take away from this case?

1) Consider each employee’s continued employment on the merits of his/her performance.
2) What is good for the goose is not necessarily, what is good for the gander.
3) Lastly, don’t automatically terminate the employment of one spouse, just because another spouse is being terminated.

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Daniel Schwartz with the Connecticut Employment Law Blog posted an excellent blog about the basics in filing an employment discrimination case.  Mr. Schwartz is correct, a discrimination lawsuit or any lawsuit for that matter is really only a set of allegations made by one party against another party (individual or business). Nothing has to be proven to file a lawsuit. Yet, so often when discrimination cases are filed by employees against employers, it gets reported in the media.

Don’t waste your time talking about a lawsuit which may not even be true or have any merit. Instead do as Mr. Schwartz’s suggests, “. . . the next time you hear about a lawsuit being filed, check back in a few months or years to find out what happened to the lawsuit; that's when there's really news to report.”
 

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Last year the EEOC filed a charge of discrimination against the Hibbing Taconite Company for denying Mr. James Edstrom, a deaf individual, employment in its mine. The EEOC contends that Hibbing Taconite rejected Mr. Edstrom, who formerly worked for LTV Mining, due to his hearing impairment, in violation of the Americans with Disabilities Act as amended (ADAAA).

On March 5, 2010, Hibbing Taconite filed a motion for summary judgment alleging it was entitled to immediate judgment in its favor because there were no disputed facts and Mr. Edstrom was not qualified for the positions he applied for due to being deaf. Mr. Edstrom applied for three positions which were in the Hibbing Taconite plant and two positions in the open pit mine. The Court granted partial summary judgment to Hibbing Taconite. It agreed there were no facts in dispute and Mr. Edstrom wasn’t qualified for the positions in the plant, but the Court found there was ample evidence on which a jury could find Mr. Edstrom could have performed the jobs in the open pit mine with a reasonable accommodation.  The court stated, “The very fact that (Edstrom) successfully worked at the LTV mine pit is strong evidence that a reasonable accommodation could have been possible.”

It will now be up to a jury to decide if Hibbing Taconite discriminated against Mr. Edstrom: (1) by considering the job duties of the positions Mr. Edstrom applied for; (2) considering his disability; and (3) considering if a reasonable accommodation could be made for Mr. Edstrom. The trial is set for July 26, 2010. As a parent of a daughter with a hearing disability and a business owner in Minnesota, I will be watching this case closely and will provide an update when more is known.

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Many firms have blogged about the most recent U.S. Supreme Court decision, Lewis v. City of Chicago No. 08-974 (May 24, 2010) including Ford & Harrison and Jackson Lewis.

In Lewis, the City of Chicago gave a written examination to applicants seeking positions with the city as firefighters. After the examination, the applicants with passing scores were categorized as “well qualified” or “qualified.” More than a year after receiving notice of the examination results, several African-American applicants who had been categorized by the City of Chicago as “qualified,” but had not been hired, filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). Federal law required EEOC charges be brought within 300 days after the unlawful employment practice occurred. Lewis and others then filed suit against the City alleging, the City’s practice of selecting only applicants who scored 89 or above, categorized as “well qualified,” had a disparate impact on African-Americans in violation of Title VII. The City objected claiming the petitioners had not filed the EEOC charges within the required 300 days.

The issue before the U.S. Supreme court was, “[w]hether a plaintiff who does not filed a timely charge challenging the adoption of a practice – here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination – may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.” The U.S. Supreme Court held, a plaintiff may timely challenge an employer’s later application of a practice, as long as he alleges each of the elements of a disparate-impact claim.

What is disparate impact? Disparate impact is defined as, “an unnecessary discriminatory effect on a protected class caused by an employment practice or policy that appears to be nondiscriminatory.” What is a protected class? A protected class is, “a group of people intended by a legislature to benefit from the protection of a statute.”

Since the enactment of Title VII of the Civil Rights Act of 1964, employers have known they are prohibited from discriminating against an individual based on their race, color, religion, sex, or national origin. However, as originally enacted, Title VII did not expressly prohibit employment practices that caused a disparate impact on individuals. In 1971, the United States Supreme Court first recognized “disparate impact” claims.

What does this decision mean for employers? It isn’t when a policy or practice is adopted that may start the time clock for discrimination or disparate-impact claims, but when the policy or practice is applied/used that is important.

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Everyone focused on the “jobs, jobs, jobs” message President Barak Obama stressed in his recent State of the Union Address, or the mouthed comment “not true” by Justice Samuel Alito. Adam Santucci reminds us that buried in the speech is a warning the Justice Department will be aggressively pursuing employment discrimination suits against public employers.

This first was announced when, “In December 2009, Thomas E. Perez, assistant attorney general for civil rights, announced the CRD’s (Civil Rights Division of the Justice Department)) intention to file more class action ‘pattern or practice’ discrimination suits against state and local governments.”

These types of cases generally involve class actions alleging discrimination in hiring practices, promotional exams, physical testing etc. The lawsuits allege such practices discriminate against a particular protected class of individuals because fewer of them are selected for employment. Mr. Perez warned he would be seeking monetary damages.

This new threat of aggressive enforcement should cause public employers to revisit their hiring, employment, and testing practices to insure compliance with the law.

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