Do some of your employees have medical conditions that require them to sit while others have to stand? Co-workers may gripe about unfair treatment if you provide a stool or chair for that worker. But a new court ruling shows why “unfair” actions are better than illegal ones …

Case in Point: Pearlie Talley worked as a store cashier for eight years. She suffered from arthritis, plus had a history of torn knee ligaments and heart surgery. Talley slipped on a waxed floor one day and injured her leg. She couldn’t stand for more than 15 minutes without extreme pain, so she started using a stool at her cashier post. Her manager took the stool away because co-workers were crying “unfair treatment.”

Eventually she brought in a doctor’s note verifying that she needed the stool as an accommodation to do her job. Her manager ignored the note. Instead, he insisted on having a meeting with her and the district manager to resolve the situation. But she was never contacted about any meeting. Soon after, Talley was removed from the work schedule and ultimately terminated.

Talley sued, claiming the company violated the Americans with Disabilities Act (ADA) by failing to provide a reasonable accommodation for her disability. (The ADA protects qualified individuals who can do the essential functions of the job with or without a reasonable accommodation. President Bush recently signed legislation that expands ADA protections to millions more Americans.)

In court, Talley argued that the store had provided stools in the past to other employees in need. Plus, she said, it failed to engage in an “interactive process” to discuss possible accommodations, as required by the ADA. Co-workers testified that she appeared to be in severe pain when at the register without a stool. (Talley v. Family Dollar Stores of Ohio Inc., 6th Cir., 9/11/08)

What happened next … and what three lessons can be learned? Read More

Maybe a long, long time ago, in a far, far away place, folks used to tell women, “Oh, you can’t do that … it’s a man’s job.” And for whatever reason, it was acceptable. Maybe the work was too heavy, muddy or risky? But welcome to 2008, where jobs are no longer classified by gender. Better check to make sure your hiring managers understand that, too …

Case in Point: Gloria Sims was a substitute lunchroom worker at an Alabama school when a full-time position opened up. Her supervisor, however, informed her that it was a “man’s job” because it involved lots of heavy lifting.

Plus, he said, the school was looking to add a “little color” to the lunchroom. So it decided to hire a black male candidate with a high school diploma.

Sims sued, alleging race and gender discrimination. The school denied the claim, arguing that Sims didn’t hold a high school diploma as required for the position. Sims argued that the school didn’t consistently stick to that diploma policy.

Two weeks after Sims filed her claim, she applied for a position outside the school district. According to Sims, when her supervisor was contacted by the potential new employer, he gave her a negative and untruthful reference. She didn’t receive the offer. So Sims tacked on a relation claim to her race- and age-bias lawsuit. (Sims v. Coosa County Bd. of Educ., M.D. Ala., 9/2/08)

What happened next and what 3 lessons can be learned?

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Doesn’t it seem like once an employee complains about harassment or discrimination they enter some kind of “employee protection program,” much like the witness protection program? They become practically untouchable because employers are so afraid of being hit with retaliation lawsuits. You may have legitimate business reasons—such a restructuring—to eliminate a complainer’s job, just first sit back and think how it will look to a jury ...

Case in Point: Jessica Magyar, a 22-year-old college student, worked quarter-time as a scheduler for an Indiana hospital. She was job sharing a part-time position with another worker. Jessica received no benefits, had no steady hours and worked on call.

On several occasions, a 52-year old male co-worker sat down in her lap and whispered offensive words in her ear. Magyar complained to her immediate supervisor but refused to file a formal complaint. The supervisor verbally warned the male employee to stop the boorish behavior. Magyar complained to higher-ups that the supervisor didn’t handle the problem, so the supervisor issued a second warning.

The following month, the supervisor decided to merge the two quarter-time positions into a single part-time position with benefits. Magyar was unable to work that many hours because of college. So the other job-sharing employee was offered the part-time position. Magyar’s supervisor said he’d call her for shift work, but never did. Eventually she was terminated for not working sufficient hours.

Magyar sued, claiming retaliation for her sexual harassment complaint. (Title VII of the Civil Rights Act of 1964 not only prohibits sexual harassment, in bans retaliation for exercising your rights under the law.) The hospital argued that the restructuring was a business decision and unrelated to Magyar’s complaint. (Magyar v. St. Joseph Reg’l Med. Ctr., 7th Cir., 9/12/08).

What happened next and what lessons can be learned?

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Your FMLA policy tells employees they can take up to 12 weeks of unpaid FMLA leave each year. But does your policy define “year”? If not, a court may do it for you—in the employee’s favor, of course …

Case in Point: Gayle Spencer, director of student affairs at a Detroit college, was hospitalized for complications of diabetes and pneumonia. She began her FMLA leave on Dec. 16, 2004 and remained on leave until March 18, 2005, when the college fired her.

She had been on leave more than the allowable 12 weeks. The school explained the firing by saying her leave was up and it didn’t have to hold her position any longer.

Not so fast. Spencer sued under the FMLA, arguing that she was entitled to 12 weeks of FMLA leave in calendar year 2004 and another 12 weeks in calendar year 2005.

The college saw things differently. College officials said its FMLA “year” was based on a fiscal year starting July 1, the same fiscal year cited in other school policies. But Spencer shot back that the school’s FMLA policy never mentioned the July 1 date. Who was right? (Spencer v. Marygrove College, E.D. Mich, Aug. 26, 2008)

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

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Every workplace has managers who love to hand out nicknames to employees and co-workers. That’s all good fun until an employee in a protected class—age, sex, race, religion, disability, etc.—takes offense to his or her special nickname. As this new court ruling shows, nicknames are dangerous and can be used as part of a “mosaic” to prove discrimination …

Case in Point: Jolyn McDonald, 54, worked for 17 years at a Best Buy store in Illinois as a customer service manager. She’d been promoted to her position after an “exceptionally strong performance history” and positive performance reviews.

One day, the store manager gave her a written warning for failing to adapt to the company’s new business model. Witnesses testified that company leaders said employees who had “been around for a while” had a harder time adjusting to the new focus. The store manager recommended that McDonald step down from her job to spend more time with her grandchildren.

A few months later, a new store manager took over and started calling McDonald “Grandma” in front of other employees. He was also known to brag that he could fire any employee “with proper documentation.” He placed McDonald on a performance improvement plan before her even worked with her.

Soon after, McDonald was told she was being demoted because her staff handled situations poorly. She quit and filed an Age Discrimination in Employment Act (ADEA) lawsuit. The ADEA prohibits workplace discrimination against employees 40 years of age and older. Employees must be able to prove either direct age discrimination or “circumstantial evidence" that suggests discrimination. McDonald said the nickname was strong circumstantial evidence.

In court, Best Buy countered by claiming that “Grandma” isn’t an age-related nickname because people under 40 could also be grandparents. (McDonald v. Best Buy Co., U.S. Dist. Court, CDIL, 8/28/08)

What happened next … and what lessons can be learned?

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There’s nothing like a thorough, prompt and impartial investigation to save a company in court. So it’s time to think: Are you (and your HR staff) prepared and trained to handle investigations the correct way? As this new ruling shows, good investigations and an independent review of those investigations can be a true “get out of court free” card …

Case in Point: Cynthia Morrison worked as an emergency-room registrar for 17 years at Howard University Hospital. All was well until a new supervisor, Mark Furline, took over and hired 10 new registrars who were mostly in their 20s. Morrison claimed that Furline favored the younger employees and was hostile toward the older ones.

A rumor circulated that the younger registrars were being paid more—but that was proven to be false. Nevertheless, someone left a screen-saver message on a shared computer asking why the younger registrars were being paid more. Furline responded by leaving his own screen saver message that said, “Because they are younger, dependable and more productive—that’s why!” Furline later apologized to the staff.

Still, Morrison claimed that the hostility and retaliation toward older registrars continued on. At one point, Morrison received a written reprimand for her attendance problems. It culminated in a five-day suspension without pay. (The suspension was consistent with the company’s progressive discipline policy.)

Morrison sued the hospital and Furline personally, alleging that the reprimand was a result of age discrimination and retaliation. The hospital responded by saying that even though Furline’s actions showed discrimination, the attendance reprimand was based on a fair investigation and layers of review. (Furline v. Morrison, D.C. Cir., 7/24/08)

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

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Employers often feel cornered when poor-performing employees take job-protected FMLA leave. Can you terminate such employees while they’re out on leave? It often comes down to one question: How well have you documented the poor performance? …

Case in Point: Jerilyn Lucas was hired to be a branch executive officer at a local bank in Wisconsin. While she had 14 years of marketing and sales experience, she’d never run a bank branch. Her supervisor initially gave Lucas a good performance review, but noted that she needed to improve her knowledge in basic branch operations within two months.

A few months later, Lucas’s supervisor began hearing complaints from bank employees that Lucas didn’t understand banking operations, was unavailable to answer questions, came late and left early. In her semi-annual performance review, Lucas was given a “2” out of “5” in staff performance management, branch client services and internal client services. (She did receive high marks for sales.)

Shortly afterward, Lucas experienced stroke-like symptoms and took one month off. Her temporary replacement was Robert Cooper, who had 15 years experience as a branch executive officer. Under Cooper’s leadership, staff morale improved and Cooper had an excellent attendance record.

When Lucas returned to work, three employees sought transfers to other branches. Her supervisor feared that Lucas’s negative attitude, unexcused absences, and lack of banking knowledge would cause “a mass exodus” of employees from the branch. The result: The bank fired her.

Lucas sued for gender discrimination under the Civil Rights Act of 1964 claiming her male replacement, Robert Cooper, was treated more favorably. The bank held up its documentation as evidence that the firing was based solely on performance. (Lucas v. PyraMax Bank, 7th Cir. 8/22/08).

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

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You’re a tolerant, open-minded person. You’ve hired people of all races and religions, including a woman who wears a head scarf (hijab) in accordance with her religion. But what do say when that woman seeks a promotion to a more visible position? A few unwise words coupled with foot-dragging on the promotion and you’ll be wrapping your head around a religious discrimination lawsuit …

Case in Point: Angela Harper was a 20-year-old African American Muslim who wore a hijab for modesty in respect of her religion. An Ellensburg, Washington, restaurant hired her for a dishwasher job. Eventually, she asked a restaurant manager to be promoted to waitress. She was permitted to work only the less lucrative shifts of breakfast and lunch.

Harper asked to work the better dinner and cocktail shifts but was told no openings were available. However, over the next two years, the restaurant hired eight white employees as cocktail and dinner waitresses. Harper was eventually allowed to cover the dinner shifts for other employees as needed, but wasn’t give a full-time dinner shift.

The restaurant owner tried to justify her decision and insisted she was “not a bigot.” The owner told Harper, “it wasn’t about your race, it was more about your scarf thing. You know how people in Ellensburg are? They’re not gonna want to see, you know, a girl like that on the cocktail shift … It was a business decision, it was nothing against you.”

Eventually, the owner offered Harper a cocktail server position but the employee felt the offer was insincere and quit. She filed an EEOC claim for religious discrimination. The Civil Rights Act of 1964 prohibits discrimination in the workplace based on protected characteristics, including religion. (EEOC v. Starlight LLC, 8/04/08)

What happened next … and what lessons can be learned?

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When one of your employees confides in her manager that she’s being harassed by a co-worker, what will that manager say? Hopefully, it’ll be something more constructive than “Go along with it,” as in the following case …

Case In Point: Sheryl Bjornson was a used car salesperson for a dealership in Idaho. Her general manager allegedly swore, made comments about her body, shared his sexual exploits, cracked sexual jokes and repeatedly touched female employees. Bjornson complained to her immediate supervisor. His response: “Go along with it.”

So Bjornson turned to HR. She showed them her daily journal in which she was recording every incident. HR responded by conducting an investigation but never interviewed all the involved parties. Eventually, HR simply disciplined the general manager by giving him a warning to curb his lips.

Bjornson sued for sex harassment under the Civil Rights Act of 1964, which prohibits harassment based on sex. In such cases, employers can assert an affirmative defense against liability if they can show they exercised reasonable care to prevent and stop the unwanted conduct. They can defend against punitive damages if they can show they made a good-faith effort to educate their managers on the issue.

The dealership tried to defend itself by saying it had an anti-harassment policy in place. It also claimed it had done sexual harassment training, but it couldn’t show evidence of that training. (Bjornson v. Dave Smith Motors, July 31, 2008).

How did the case end, and what lessons can be learned?

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Do you have employees who look like they just crawled out of a suitcase? Maybe they need a closer shave or to run an iron on their clothes. One court recently addressed this question: If an employee is fired for ignoring his boss’ demands to get a shave, does that count as “misconduct” that disqualifies him from unemployment benefits? …

Case In Point: Craig Berg, a salesman for a Harley Davidson store in Minnesota, was warned by his supervisor at least 10 times about his need to look more professional at work. The boss told Berg, “If you want to grow a beard—grow a beard. If you don’t then shave … I don’t want the, ‘I’m just not going to shave until every third or fourth day’ look.”

Berg was apparently as unreliable with his iron as he was with his razor, frequently appearing in rumpled clothes. He was also no slave to the timepiece, often showing up late.

On one occasion, Berg came to work unshaven and not dressed properly. His supervisor warned him that his scruffy look was unacceptable. Berg defended himself and said his razor was dull, despite its infrequent application.

The next day, Berg showed up a half hour late, looking “homeless” and possibly smelling of alcohol. His boss sent him home to shower, shave and report back to work. Berg went home, showered and shaved but he didn’t return to work. He later explained that he “would have been crabby” had he returned that day.

When Berg finally did return, he had a clean face … and a pink slip. The company fired him for misconduct. Berg applied for unemployment benefits but was denied because his fired was due to misconduct. (Employment misconduct is defined in Minnesota as any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has a right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment. (Minn. Stat. § 268.095, subd. 6(a)).

Showing greater tenacity in the legal system than he had ever done in his grooming, Berg appealed his denial of unemployment all the way to the state’s appellate court. (Berg v. Apol’s Harley Davidson, Inc., Minn. App. Ct., July 29)

How did the case end and what lessons can be learned?

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Migraine headaches can be serious business—sometimes requiring FMLA leave. But what if you discover that your migraine-suffering employee used her FMLA time to cut lawns at her side job? An Indiana employer facing that situation recently handled that situation aggressively—and legally …

Case In Point: Diana Vail worked the third shift (11 p.m. to 7 a.m.) at an auto parts manufacturing plant. Vail sometimes suffered from migraine headaches that, she said, “crept on her with short notice.” When they’d occur, she’d call a supervisor and say she was taking FMLA leave.

The company knew that Vail’s husband owned a lawn-mowing business and that she worked for him on a part-time basis. The company also noted that her FMLA requests increased during the summer hours when her husband’s services were in peak demand.

So, the company hired an off-duty police officer to follow her. It suspected she was abusing the intermittent leave and was, in fact, healthy enough to work for her husband.

During one of Vail’s migraine-induced FMLA leaves, the investigator observed Vail mowing the lawn of a husband’s customer. The company fired Vail because it had an “honest belief” that Vail was not using her leave for its intended purpose.

Vail sued, claiming her employer unlawfully interfered with her FMLA rights. For Vail to prevail on an FMLA-interference claim, she must prove that she used her FMLA leave “for the intended purpose of the leave” and that her employer took negative action against her because of the leave. (Vail v. Raybestos Products Co., 7th Cir., 7/21/08)

How did the case end and what lessons can be learned?

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When was the last time you read your organization’s Family and Medical Leave (FMLA) policy? As a new case shows, it could be creating a contract for employees to gain FMLA-like protection even if they normally wouldn’t be eligible for FMLA under the law. If it does, get ready to stand by your promise …

Case in Point: Steven Peters worked out of his Indiana home for a pharmaceutical manufacturer headquartered in California. He sold company products to doctors in the Midwest. When Peters suffered neck and shoulder injuries in a work-related car accident, he filed a workers’ compensation claim. Later he returned to work with restrictions but then was required to undergo surgery.

Peters requested FMLA leave and his employer granted it. The FMLA covers organizations with at least 50 employees within 75 miles of the worksite. The law says that for employees to be eligible for FMLA, they must have worked at least 1,250 hours in the past 12 months for that employer. (Of course, employers can set their own, less-restrictive qualifications for FMLA leave.)

The employee handbook distributed by Peters’ employer stated that all employees were eligible for FMLA leave if they worked 1,250 hours in the previous 12 months. That was the only requirement. It didn’t mention of the FMLA statutory requirement that employers have at least 50 employees within 75 miles to be eligible.

The company sent Peters a letter confirming his FMLA leave and promising Peters he would retain his employee status during the FMLA leave.

Peters requested a second FMLA leave related to his injury, which was granted. But prior to his return, the company hired his replacement.

Peters sued under the FMLA. The company responded by claiming that Peters wasn’t covered by the FMLA because the 50/75 requirement wasn’t met. Peters argued that the company should have included that requirement in the handbook if it was company policy. (Peters v. Gilead Sciences, 7th Circuit, 7/14/08)

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When the Society for Human Resource Management (SHRM) surveyed employers about their biggest FMLA administrative challenges, dealing with leave for employees’ own chronic conditions ranked number one. But, surprisingly, not far behind was FMLA leave taken for “caring for a sick parent,” which ranked as more challenging than FMLA leave taken for a sick spouse or even a child.

With more “sandwich generation” employees taking care of children and parents at the same time, it’s wise to be consistent about requesting certification for all types of FMLA leave, including care for elderly parents.

Case in Point: Honda employee Chandra Scott filed an FMLA lawsuit, claiming that she was fired in retaliation for taking FMLA leave to help her mother.

Scott had taken leave when her mother underwent a stress test after she complained of shortness of breath. Then, more than a month later, her mother had an outpatient heart catheterization but went back to work after 48 hours. She didn’t need any further time off.

Honda argued that Scott didn’t qualify for FMLA leave because, it said, her mother’s condition didn’t rise to the level of a “serious health condition” defined under the FMLA. Under the FMLA a “serious health condition” is an “illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.” (For details, read “FMLA: How to Define a Serious’ Health Condition.”)

How did the case end? And what lessons can be learned?

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Asking your administrative assistant to fetch you coffee may be old-school, but is it sex discrimination? In a recent case, a female employee got in such a froth about her bosses’ demands for coffee that she said, “Get your own coffee and see you in court!” ...

Case in Point: Tamara Klopfenstein was hired as a part-time receptionist for a Pennsylvania sales company. But things went wrong right away. Her supervisors discussed her performance problems, such as failing to pass along phone messages and putting the wrong labels on packages.

But the real trouble began when Klopfenstein received an e-mail from a company vice president who said one of her “many responsibilities as a receptionist/customer services rep is making and getting coffee.”

He went on to place a reoccurring reminder on her electronic calendar to bring coffee to him and another exec at 3:00 p.m. each day. (When she interviewed, Klopfenstein wasn’t told that coffee service would be part of her duties. But it was mentioned soon after she was hired.)

Klopfenstein quickly e-mailed back, “I don’t have a problem getting coffee/and or water for our guests … I don’t expect to serve and wait on you by making and serving you coffee every day at 3:00. If I would have known that when I took the job, I would have never taken the job.”

Apparently, that was the last straw. Nine minutes after receiving Klopfenstein’s e-mail, the boss fired her. She then sued for sexual harassment, sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. She claimed her bosses created a hostile work environment by requiring her to perform the “degrading” task of getting coffee for male bosses. (Klopfenstein v. National Sales and Supply, LLC, ED PA, 6/5/08)

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

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Do some of your employees work in hot conditions? If those workers have heart conditions, they may be entitled to air conditioning as a “reasonable accommodation” under the Americans with Disabilities Act (ADA) …

Case In Point: Charles Gribben worked as a UPS driver in Phoenix where he transferred trucks to various locations. He had a heart condition and his cardiologist requested that he only drive in trucks with air conditioning because of the local heat and his medical condition.

Most of the trucks he worked in were air conditioned, but UPS couldn’t guarantee him that accommodation. So it terminated Gribben.

Gribben sued UPS under the ADA for disability discrimination and retaliation. The ADA requires employers to offer reasonable accommodations to qualified disabled employees. An employee meets that test if he or she is “substantially limited in a major life activity” but can still do the essential functions of the job, with or without a reasonable accommodation.

UPS argued that although Gribben had a physical impairment that limited a major life activity, he failed to prove that he was “substantially” limited compared with the “average person in the general population.” UPS pointed to the fact that Gribben could walk and lift some weights. (Gribben v. United Parcel Serv. Inc., 9th Cir., 6/16/08)

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

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