Have you ever approved FMLA leave for an employee but had a sneaking suspicion that the time off would be used for much more than bed rest? In this new ruling, the company actually videotaped a supposedly injured FMLA-leave taker building a porch on his house. But be careful not to pull out the “You’re Fired!” finger too quickly or you may find yourself in the center of an FMLA retaliation suit.

Case in Point: James Weimer worked on a Honda assembly line at an Ohio plant. One day, he suffered a concussion when a co-worker closed his head into the trunk of his car. The company doctor ordered him off work pending further exams by a specialist. Weimer ask for FMLA leave and received it.

Weimer was cleared to return to work on March 15 but actually came back the following day. Honda, acting on a tip, videotaped Weimer on March 15 building a front porch on his home. When he returned to work on March 16, the company questioned him about his lumberjack activates. Weimer didn’t deny it.

Honda fired him for dishonesty. It argued that Weimer had “abused” his FMLA leave, using it to build a porch, not to recover from injury. Honda asserted that it didn’t fire Weimer for exercising his FMLA rights, but rather for staying on it too long when he no longer needed it. (The FMLA says that employees can “lose the protections of the FMLA when he or she does not use the leave for its intended purpose.”)

In response, Weimer shot back with an FMLA retaliation lawsuit. He claimed that he didn’t believe he needed FMLA leave the entire time but had to wait for Honda’s doctors to clear him to come back to work. (Weimer v. Honda of Am. Mfg. Inc., 6/12/08)

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Do you ever fear that employees’ physical problems could create a danger to themselves or others around them? Think it would be best to change their duties to keep everyone safe? A new court ruling shows why such a well-intentioned deed could backfire into a “regarded as disabled” lawsuit under the Americans with Disabilities Act...

Case in Point: David Justice worked as an electrician at a beverage canning plant for 10 years. His job included working with large machines, walking on high catwalks and using ladders and hydraulic lifts. But after he suffered a stroke, he had difficulty with balance and vertigo.

His doctors eventually let him return but restricted him from working at heights. The company properly acknowledged the restriction and used other electricians to perform the height tasks.

But a few years later, Justice was transferred to the night shift. He was placed under a new supervisor who didn’t know about Justice’s work restrictions. The new boss observed Justice’s balance problems and feared he might pose a safety threat. Eventually the new boss transferred Justice to a janitor job, which was the factory’s lowest-ranking position and paid significantly less than an electrician.

Justice shot off an ADA lawsuit, saying the company unlawfully “regarded” him as disabled, even if he wasn’t. Thus, he claimed, he should be eligible for ADA job protection and reasonable accommodations for his condition. The company argued that he wasn’t disabled, so he shouldn’t get any special rights.

To prove a “regarded as disabled” discrimination claim, employees must show that the employer believed that the employee was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes” when in fact that is not the case.

How did this case end … and what three lessons can be learned?

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Judges and juries bring a mental stopwatch to every discrimination and retaliation case. They use it to compare the time between when employees exercise their legal rights (using FMLA, voice harassment complaint, etc.) and when you took action against them. Tick, tick, tick … if you can hear it, don’t do it!

Case in Point: William and Debra Trujillo worked at a power plant in Wyoming. Their son, Charlie, had brain cancer, which required expensive medical treatment. The power plant provided a self-insured health plan, meaning the company paid the bills directly. Each year, the company discussed the past year’s health claims and the possibility of raising employees’ premiums to cover the costs.

Eleven days after Charlie Trujillo started his “high-dollar” medical treatments out of state, the company began an investigation against his father for timesheet fraud. Mr. Trujillo stated that he was suffering from depression and taking anti-depressants, which affected his memory. Therefore, he couldn’t remember the details of his time sheets from months before. He was eventually fired.

Shortly after, Mrs. Trujillo was investigated for timesheet fraud. Six weeks later, she was fired for the same reason. Their son died the following year of his cancer.

The Trujillos sued the power plant under the Americans with Disabilities Act (ADA) for “association discrimination.” The ADA prohibits employers from discriminating against a qualified individual “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The power plant argued that it had a legitimate, nondiscriminatory reason for firing: the fraudulent timesheets. But the Trujillos said the timing was too suspicious. (Trujillo v. PacifiCorp, 5/7/08)

How did this case end … and what lessons can be learned?

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You may trust your employees to not harass female colleagues. But do you trust Howard Stern? The growth of XM and Sirius radios have brought uncensored programming into cubicles, warehouses and breakrooms. And as a new court ruling proves, employees who overhear such sexual banter—even if it’s not directed at them—can sue for harassment…

Case In Point: Ingrid Reeves, a transportation sales rep, was the only woman working in an otherwise all-male work area. She complained that she was deluged on a daily basis by sexually offensive language about women. She was also made to listen to a satellite radio station that featured frequent talk about women as sexual objects. She’d change the channel, but the men would change it back.

The branch manager talked to the male employees at a company meeting about their language and behavior. But it never ceased.

Eventually Reeves quit and filed suit, claiming she was subjected to a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The law says behavior must be “severe or pervasive” enough to warrant a hostile environment. Employees only have to prove one.

The company argued that Reeves shouldn’t be allowed to bring such a lawsuit because she wasn’t the target of the conduct. A lower court agreed and dismissed her case, saying none of the talk—either from co-workers or the radio—was directed at Reeves. Reeves appealed. What did that court say? (Reeves v. C.H. Robinson Worldwide, Inc., 4/28/08)

How did this case end … and what lessons can be learned?

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It’s nearly futile to try to deflect Cupid’s arrows. Still, many organizations do set policies to minimize the potential legal fallout from co-workers’ romantic relationships. UPS recently got sued over its policy that bans supervisors from dating ANY hourly employee—regardless whether the employee is a direct report. So, do love relationships trump house rules? In this case, the court sighed, “Love and marriage are the losers; something doesn’t seem quite right about that.”

Case In Point: Gerald Ellis worked for UPS for 21 years, successfully rising from driver to management. Ellis, who was black, fell in love with a white female hourly employee in the company call center. They kept their relationship secret for three years because of the company’s strict nonfraternization policy.

UPS’ policy makes it a firing offense for managers to engage in a romantic relationship with any hourly employee, even if there’s no direct reporting relationship. UPS says the policy eliminates any chance of favoritism. Plus, the company moves employees around so often that it’s likely a supervisor will end up being the boss of his or her paramour.

Ultimately, the HR manager found out and told Ellis to either end the relationship or leave UPS. However, the pair secretly got engaged and married the next year. No one knew. But, the following summer, the HR manager saw Ellis at a concert “acting affectionately with a white woman.” He confirmed it was the UPS hourly employee. Ellis was fired for violating the nonfraternization policy and for “dishonesty.”

Ellis sued for race discrimination under Title VII, claiming that UPS only sporadically enforced the nonfraternization policy and that his black couriers were outwardly angry at him for being romantically involved with a white woman. He cited co-workers’ comments, such as "there were plenty of good sisters out there (to date).” UPS countered that its policy was consistently enforced without regard to race. (Ellis v. United Parcel Services, 4/29/08).

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What should employers do if an employee’s work performance suffers while he or she is taking FMLA intermittent leave? Can you terminate employees when their work falters because of those absences? One court last month sent a clear message: “Don’t go there!” It said employees exercising their FMLA rights should not be held to the same production standard as full-time employees who are at work everyday. Disciplining or firing such workers could earn you a one-way ticket to an FMLA retaliation lawsuit.

Case In Point: Debra Lewis, a bookkeeper for an Illinois school district, performed her duties very well and earned good reviews. But when both her parents became terminally ill, she requested and was given a flex-time schedule and was allowed to bring some work home.

The superintendent soon complained that Lewis was missing too much work and it was burdening her co-workers. The school board wanted her fired for poor performance, but the superintendent expressed fear of FMLA liability. So instead, he offered Lewis 12 weeks of unpaid intermittent FMLA leave. Lewis accepted.

Lewis was still expected to perform the duties of a full-time bookkeeper while on intermittent leave. The school board didn’t hire a part-timer or ask co-workers lend a hand. Lewis worked nights and weekends to catch up with her work, but it was all unpaid.

The school board, at tape recorded meetings, said it wanted to fire Lewis and called the FMLA “ludicrous” and a "fiasco.” The board told the superintendent to build a case against Lewis based on her poor performance so she could be terminated. Eventually, Lewis was given a choice: resign or take a demotion and salary cut based on her poor performance.

Lewis took the demotion and filed an FMLA lawsuit. The school district argued that it had a legitimate non-FMLA reason to fire her: poor performance. (Lewis v. School District #70, 4/17/08)

How did this case end … and what lessons can be learned?

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That’s a trick question. The answer is none. Still, courts hear it all the time. “We’re an exception to harassment/discrimination laws because … We’re in a gritty industry …We’re doctors …. We have an extra-friendly workplace.” Whatever. One company just wrote a $1.5 million check trying that defense. It doesn’t work in 2008.

Case In Point: A group of black employees complained that they were subjected to racial harassment from co-workers at a power plant construction project in Massachusetts. The workers complained of racist graffiti, demeaning language and having their tools stolen.

The employees complained to the on-site project management team. But no action was taken and the graffiti was allowed to remain. Then it got worse. The complainers soon faced retaliation and eventually were fired.

The black employees filed a race discrimination and retaliation claim with the EEOC. The employer tried to shrug it off because construction sites are rough-and-tumble workplace. (EEOC v. Washington Group Int’l Inc., consent decree approved 3/17/08)

How did this case end … and what lessons can be learned?

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If employees ask for Sunday off work for religious reasons, must they attend services on that day? A new court ruling clarifies that the answer is no. And you could face a religious discrimination lawsuit even if you try to accommodate employees by allowing them to find their own replacement for Sunday shifts ...

Case In Point: Kimberly Bloom, a cashier at an Aldi grocery store in Pennsylvania, asked for Sundays off work for religious reasons. Aldi’s shift rotation system required Bloom to work only one Sunday every two months. It also provided a voluntary shift-swap system so employees could trade days with co-workers who could work Sundays.

Bloom told her boss that her religious convictions as a Christian prohibited her from working Sundays or from asking her co-workers to work in her place. The company offered to let her come in later so she could attend church services, but she said she didn’t go to church. Instead, she read the Bible, watched TV services at home and spent time with family.

When Bloom failed to show up to work on two Sundays, the store fired her. She filed a Title VII religious discrimination claim with the EEOC, which backed her lawsuit. On its web site, the EEOC says employers must “reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.”

In court, Aldi lawyers argued that the company’s voluntary shift rotation policy was a “reasonable accommodation.” And it said that working on Sundays was an “essential job function” for cashiers and that if Bloom were exempt, it would cause undue hardship.

The grocery store also claimed that since Bloom didn’t go to church, her desire not to work the Sunday shifts was personal, not religious. (EEOC v. Aldi Inc., 3/28/08).

How did this case end…and what lessons can be learned?

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Do you have to treat transgendered job applicants differently? Which box, if any, do you check on the application—male or female? And what special laws must you know about?

Federal workplace anti-discrimination laws don’t specifically extend protection to transgendered people (those who present themselves as members of the opposite sex). However, 13 states—California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington—plus several cities and counties have passed such laws.

A new court ruling shows that even if your state or city doesn’t have such a law, your organization may still face liability for discriminating against transgendered people. That’s why it’s wise to handle interviews with transgendered people just as you would with anyone—focused on job-related information only.

Case In Point: Raul Lopez is a biological male who presents himself in public as Izza Lopez, a female. Lopez applied for a position as a telephone scheduler at a Houston medical clinic. He submitted his application using both his male and female names and was open about being transgender.

Two people interviewed him for the position. He thought they both knew he was transgender because he had friends at the clinic who shared that information. Lopez used both names for his background check and drug test. He was eventually offered the position.

But the HR director demanded to know what Lopez’s biological sex was and later rescinded the offer, saying Lopez “misrepresented” himself as a female in the interview. The clinic has a written policy that refuses to hire people whose background checks reveal they misrepresented themselves to get hired.

Lopez sued for sex discrimination under Title VII of the Civil Rights Act of 1964. But he didn’t sue because he was transgendered (remember, that’s not protected under the law). Rather, he sued because he was allegedly discriminated against because he was perceived as not conforming to traditional gender stereotypes of how a male should look. (The Supreme Court has said Title VII cases can be based on an employer’s perception that an individual fails to conform to traditional gender roles.)

The clinic argued that Lopez couldn’t purse the case because transgender people aren’t a protected class under Title VII. (Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 4/3/08)

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Chances are, you’ve got at least one diabetic employee in your workplace. What would you say if that person asked for an altered work schedule so she could eat regular meals, check her blood or exercise? Are you required by law to grant such requests?

Diabetes is not automatically a disability under the Americans with Disabilities Act (ADA). But as a new court ruling shows, if employees can prove their diabetes “substantially limits one of their major life activities,” such as eating, then the employee is legally disabled and protected by the ADA. As a result, supervisors would be required to engage in an interactive discussion to arrive at a reasonable accommodation.

Case in Point: Lisa Robbins, a television station manager, was diagnosed with Type II Diabetes. She regularly worked 45 to 50 hours a week.

She repeatedly asked her supervisor and even his boss to reduce her hours and give her a “more manageable” work schedule so she could better control her diabetes with regular meal times, routine blood checks and the opportunity to exercise. Those requests were ignored. In fact, Robbins saw her workload increased after making the requests.

Robbins eventually resigned and filed an ADA lawsuit, claiming the station failed to accommodate her disability.

The TV station argued that Robbins couldn’t legally pursue an ADA case because she wasn’t “disabled” under the law. (The ADA protects people who are “substantially limited in a major life activity” yet can still perform the essential functions of the job, with or without a reasonable accommodation.)

The station claimed that her doctor’s recommendations to eat limited portions, have regular meal times and eat healthy was no different than recommendations made to nondisabled people who were trying to control their weight. (Robbins v. WXIX Raycom Media, S.D. Ohio, No. 1:06cv278, 3/5/08)

How did this case end … and what three lessons can be learned?

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“So exactly why do you need those four days of leave?” Your supervisors may ask such questions, perhaps out of curiosity or because they’re the ones who must approve FMLA requests. But as this ruling shows, asking the wrong questions—and then divulging that confidential medical info—can quickly turn into a violation of the Americans with Disabilities Act (ADA).

That’s because the ADA prohibits employers from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The ADA also says all medical information must be collected on separate forms, kept in separate files and treated as confidential.

Case in Point: “John Doe,” a credit-company employee, was diagnosed with HIV and needed to have his blood drawn regularly. Doe was written up by his supervisor for missing work to attend medical appointments.

Once when he needed four days of leave for doctor’s appointments, Doe didn’t want to approach his direct supervisor, fearing that he’d gossip about Doe’s HIV status. So Doe approached another supervisor, Danny Dunson, to approve a schedule-change accommodation.

Dunson demanded to know Doe’s specific diagnosis. He pressed him, stating, “I have to know why actually to accommodate you when other people are coming and asking for accommodations and I am turning them down. Why am I going to give you an accommodation?”

Doe replied that his condition was “confidential and stigmatizing.” But Dunson pressed on, demanding to know “what’s going on.” Doe eventually revealed his HIV diagnosis to Dunson. It didn’t take long for word to spread.

Dunson told Doe’s immediate supervisor, apparently because the direct supervisor wanted to know exactly why Doe was no longer on the regular schedule. As Doe feared, his direct supervisor soon disclosed his HIV diagnosis to a handful of his co-workers.

Doe complained. An HR investigation determined that the supervisor breached Doe’s right to confidentiality. Doe claimed he suffered shame, embarrassment and depression as a result of the workplace gossip.

Doe sued under the ADA, claiming the company made unlawful inquiries into his medical condition and wrongfully disclosed his confidential medical diagnosis. The company argued that it did nothing wrong, saying Doe volunteered the information and there was no “sustainable injury” caused to Doe when the information was divulged. (EEOC v. Ford Motor Credit Company, 1/14/08)

How did this case end ... and what three lessons can be learned?

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Do some of your employees’ spouses or children have serious (and expensive) health troubles? It may be tempting to offer suggestions about less-costly treatments—or even to send that employee packing. But don’t do it. As this new ruling shows, it’s illegal to discriminate against employees based on their relationship with a disabled person …

Case in Point: Phillis Dewitt was a nurse manager at Proctor Hospital in Peoria, Illinois. She was a rising star and received excellent evaluations. Her husband, Anthony, suffered from prostate cancer for several years.

The hospital, which was struggling financially, had a partially self-insured health care plan. Over a three-year period, the hospital was regularly notified of Anthony’s escalating medical costs.

At one point, a supervisor confronted Phillis about those high costs and suggested she consider “less expensive” hospice care over the current treatments of chemotherapy and radiation. On a separate occasion, with Phillis present, the supervisor held a meeting to discuss the hospital’s financial crisis and said the hospital would require “creative” cost cuts.

A few months later, Phillis was fired and marked as “ineligible to be rehired.” Her husband died the following year. She sued, alleging the firing was caused by “association discrimination,” which is unlawful under the federal Americans with Disabilities Act (ADA). The hospital argued Phillis was fired for insubordination. (Dewitt v. Proctor Hospital, 7th. Cir., 2/27/08)

How did this case end ... and what three lessons can be learned?

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Sometimes it just seems like good old-fashioned ribbing between co-workers. But when does insensitive teasing turn into an illegal hostile work environment that violates Title VII of the federal Civil Rights Act? One court said that while individual incidents may be viewed as singular events, courts will view all incidents “as a whole” when deciding if they add up to unlawful harassment.

Case in Point: Gloria Nieves was of Colombian origin and worked at a deli in Delaware. Her co-workers ridiculed her because of her limited English skills. They suggested that she knew a lot about drugs because she was from Colombia. They frequently joked about the status of her green card. She was allegedly called “stupid” by a co-worker. Another co-worker admitted that Nieves was called racial slurs behind her back and given the nickname of “Chihuahua.”

While Nieves complained to her managers, they took no action. Management even denied that Nieves ever notified them about the incidents, even though a co-worker testified that she overheard Nieves complaining at least once.

Nieves reported experiencing chest pains and crying spells because of all the comments. Eventually, she filed discrimination claims with the EEOC and state labor department and a lawsuit under Title VII for harassment based on national origin.

The deli responded by arguing that the co-workers’ conduct wasn’t severe enough to be unlawful under Title VII. That left the court with this question: How much harassment is enough to tip the scales into being unlawful? (Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

How Did This Case End … And What Lessons Can Be Learned?

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Sometimes, the simplest mistakes are the most expensive. When faced with the decision of firing an assembly-line worker or giving her a chair to ease her arthritis, this company took the litigious route—and paid the price …

Case in Point: Delores Vaughn worked on the assembly line for Sharp Manufacturing. When the arthritis in her legs got bad, her doctor said she needed to sit during the workday. He suggested she be given a stool to sit on as an accommodation.

But the company refused, saying it was an “essential function” of her job to stand all day. Vaughn filed a complaint with the EEOC, arguing that the company failed to provide her with a “reasonable accommodation” for her disability, a violation of the Americans with Disabilities Act (ADA). The company eventually fired her, claiming that she couldn’t do the essential function of her job, so she wasn’t protected by the ADA.

Ten days after she was fired, Vaughn filed for Social Security Disability Insurance, claiming she was disabled. The company argued that this filing proved that she was totally disabled, unable to work and, therefore, not protected by the ADA. Vaughn countered that a simple four-legged stool accommodation was all she needed to be able to perform the job’s essential function. (EEOC vs. Sharp Mfg. Co. of Am., W.B. Tenn., 2/1/08).

How Did This Case End … And What Lessons Can Be Learned?

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If your organization leases temporary employees from an agency, what should you do if one of them complains she’s being harassed? Who should do the investigation—your organization or the temp agency? A new ruling says that even though temps aren’t your employees, you’d better take quick action to investigate the situation and stop the conduct—and the agency should do the same.

Case in Point: Kristen McGee worked as a temp for Kelly Services. The agency contracted McGee out to a General Motors parts plant. Right away, the plant manager allegedly began subjecting McGee to non-stop harassing conduct. He asked her about her sex life, made suggestive comments and put his arm around her frequently.

After several months of putting up with it, McGee finally approached a GM manager to ask if she could use the GM hotline to report the harassment. The manager alerted HR and within one day GM initiated an investigation, which included contacting Kelly Services. Kelly Services initiated its own investigation as well.

McGee wasn’t given a copy of the GM harassment policy, but she was given the one from her employer, Kelly Services. Also, she did know about the GM hotline because it was communicated in postings throughout the plant.

McGee filed a claim with the EEOC against GM alleging sexual harassment and retaliation. She also claimed that GM never completed the investigation, which it had not. But GM countered by saying that it shouldn’t be liable because it stepped up and investigated right away. (EEOC vs General Motors Corp., SV. Miss.)

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