Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Wilson demanded the girl sign a contract consenting to a restraining order guaranteeing she would not come near him again.  On three separate occasions he demanded school administrators make the girl sign it.  However, the principal determined the harassment had ceased once she was moved to a different class, and therefore there was no need for such a contract.  Wilson then contacted the girl’s mother directly, but was unsuccessful in having the contract signed.

Next, the para-professional informed the principal that he would no longer supervise an autistic student at lunchtime, a duty that was part of his job description.  The principal fired Wilson for insubordination – refusing to perform his job duties.  Wilson filed a lawsuit in Federal court claiming the school fired him because of his sex.  In addition, the lawsuit claimed the student’s actions constituted sexual harassment and created a hostile work environment.

The Federal District Court Judge found this was simply immature behavior from a 10-year old and in no way reached the level of harassment.  There was no sexual component to the child’s actions; therefore there was no sexual harassment.  In order to find a hostile work environment, there must be proof that the conduct interfered with the employee’s job duties.  Here, the girl’s conduct did not interfere with his job duties; rather he simply voluntarily stopped doing them.  The school moved the girl to another class shortly after the complaints were made and the “harassment” stopped.  In addition, the school did not fire Wilson because of his sex.  His insubordination gave school administrators a legitimate, nondiscriminatory reason for firing him.

Such a frivolous claim by an employee wastes a court’s time and resources.  It is yet another example of the increase in frivolous discrimination complaints by employees.  The school’s swift action in addressing the alleged harassment is a great example to all employers.  Employers should be sure to have strong harassment-free policies in place and should train all supervisors on how to handle such situations.  Then when unreasonable claims are made by employees, swift action can be taken to stop such frivolous claims. 

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Stephen Hoffman worked as a service technician for Advanced Healthcare.  The Company was aware that Hoffman was in remission from renal cancer.  Hoffman worked from home eight hours a day, five days a week.  The Company decided that all service technicians needed to increase their hours to between sixty five and seventy hours per week.  Hoffman informed them that he was unable to work such long hours.  He provided his supervisors with a doctor’s note limiting his hours to forty per week.  The Company refused to accept this, and alternatively asked Hoffman to come to work at the office instead of working from home.  Since this would add two to three hours of commuting time to his day, Hoffman refused to do so.  When Hoffman and the Company failed to agree upon his schedule, Hoffman stopped working.

Hoffman claimed he was fired because of his disability, in violation of the ADAAA.  The Company argued cancer in remission was not a disability.  The Court held that under the 2009 amendments to the ADA, cancer in remission is considered a “disability” and employees in remission should be protected.  The ADAAA states “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”  The Court said the Company failed to provide Hoffman with a reasonable accommodation, and could not prove Hoffman’s limitation to forty hours per week would negatively affect the Company’s business.  Hoffman was not required to show he was substantially limited in a major life activity while in remission.

This decision confirms the broadened scope of who is considered disabled under the ADA and leads the way for other similarly situated employees.  Employers must document efforts to accommodate such employee, unless the accommodation would place an undue hardship on the company and/or other employees. Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Generally, to establish an ADEA claim (which protects workers age 40 and over), a plaintiff must show (1) he was a member of the protected class; (2) he sustained an adverse employment action; (3) he was qualified for his position; and (4) he was replaced by someone outside of the protected class or treated differently than similarly situated employees outside of the protected class.  However, in Johnson v. Franklin Farmers Coop., the Sixth Circuit ruled that the 64-year-old plaintiff had to go one more step since he was discharged as part of a RIF.  That extra step is presenting additional evidence indicating the employer singled him out for discharge based on his age.  The court explained “the purpose of the additional evidence requirement is to ensure, in reduction in force cases, that the plaintiff has presented evidence to show that there is a chance the reduction in force is not the reason for the termination.” In the Johnson case, the plaintiff failed to present such additional evidence that he was singled out and, therefore, lost his claim.

While the Sixth Circuit’s interpretation of the law can help employers defend an ADEA case, employers are always better off not having to defend claims in the first place.  When conducting a RIF, consult labor and employment counsel or strong HR support to minimize the risk of claims.  If you are offering severance, you can also minimize the risk of litigation by having employees sign a release covering ADEA and all other employment related claims.  Keep in mind, there are specific requirements that must be met for such a release to be enforceable, and you should consult competent counsel for this option. 

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In 2005, the U.S. Supreme Court, in Smith v. City of Jackson, held that the Age Discrimination in Employment Act (“ADEA”) allows employees to bring a disparate impact age discrimination claim.  This was a major shift in the law.  As a result, age claims not based on any individualized, intentional age discrimination, but rather on an age-neutral employment practice which has a disproportionate impact on employees 40 and over can now prevail.  One positive outcome for employers, however, was that the Court allowed employers to avoid liability if the employment practice was based on “reasonable factors other than age.”

While the Court did not fully define the extent of the “reasonable factors other than age” test, the Court did clarify that this test was not as stringent as the “business necessity” test used in disparate impact claims under Title VII.  In those claims, employers with a practice that has a disparate impact on a protected class can only avoid liability if they can show there was no less discriminatory alternative.  The “reasonable factors other than age” test allows employers that have  a reasonable basis for creating the policy at issue to prevail, even though other alternatives with less impact on employees over 40 were available. 

Following the Supreme Court’s decision, federal courts (and employers) continue to struggle to fully define the “reasonable factors other than age” test.  The EEOC’s proposed regulation seeks to provide specific guidance.  For example, since the goal of the ADEA is to protect the employment opportunities of older persons, the proposed regulation defines a “reasonable factor” as one used by an employer exercising reasonable care to avoid limiting the employment opportunities of older persons.

With regard to the reasonableness of non-age factors, the proposed rule gives a non-exhaustive list of considerations such as whether the practice is a common business practice, whether the factors are objective, whether supervisors were trained to avoid age-related stereotypes in applying the factors, and whether the employer took steps to ameliorate unnecessary and avoidable harm to those 40 and older.

One important consideration is that employers facing a disparate impact claim will not be able to plead ignorance, claiming they did not know the practice in question had a disparate impact.  Thus, the proposed rule essentially imposes an obligation to assess the impact that an employment practice would have on employees age 40 and over.

In short, the proposed rule requires employers to (1) be aware of the possibility and the extent that an employment practice may disproportionately affect older workers, (2) verify employment practices are based on reasonable non-age factors, and (3) implement safeguards to ensure those factors are applied properly. 

Brody and Associates regularly advises employers in matters in all state, Federal and local courts.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

As part of PQ Corp.’s reduction in force, eight of the 56 employees in the research and development unit were laid off, including the two plaintiffs.  The problem for PQ Corp. is that while only 17 of the 56 employees in that unit were 55 or older, all eight laid-off employees were at least 55.  Moreover, the average age of retained employees was 45, while the average age of terminated employees was 62.

The two plaintiffs argued that those statistics proved willful age discrimination, particularly since there were younger employees who met the criteria for termination but were retained.  Although the company offered age-neutral explanations in response, the fact that those reasons changed over the course of the litigation (which began in 2006) undercut the credibility of those explanations.

Because the jury found willful age discrimination, the plaintiffs were awarded double their back pay under the federal Age Discrimination in Employment Act.  Worse yet, the majority of the total damages were “compensatory” emotional damages awarded under Pennsylvania law.

The lesson for employers is that when a RIF is necessary, make sure you have an appropriate, documented explanation as to why employees were selected for termination, particularly if your statistics show a disproportionate number of older workers have been selected.  Also, be sure you’ve completed an adverse impact analysis so you know when a disproporationate number of protected employees are going to be laid off.  With this knowledge, competent legal counsel can help you take appropriate steps to minimize the risk of liability down the line.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

After 30 years of employment with Denver Merchandise Mart Inc. (“DMM”), Darrell R. Hare was terminated at the age of 64. Thereafter, he brought a claim of age discrimination under the ADEA, but a federal trial court granted summary judgment against him. He appealed to the Tenth Circuit Court of Appeals.

In order to establish a prima facie case of age discrimination, an employee must show (1) he was in a protected class; (2) was qualified for the position; (3) was discharged; and (4) the position was not eliminated after he was discharged. However, at least in the Tenth Circuit, if Hare could not establish the fourth element, he could “provide other evidence that the termination occurred under circumstances that give rise to an inference of unlawful discrimination.” Hare did just that by referencing several age-related remarks made by management involved in the decision to terminate him.

However, the court found that these statements, made in 2002, alone were not temporally close enough to Hare’s termination in 2003 to indicate a discriminatory intent. Yet, the Appeals court still found a temporal nexus linking the remarks to Hare’s termination. The court pointed to the fact that American Realty Investors, the principal owners of DMM, began searching for a replacement for Hare less than a month after the comments were made and eliminated a bonus program that made up more than half of Hare’s yearly salary. “The temporal nexus between the age-related remarks and these more immediate actions by ARI is relatively close and sufficient to support an inference of discriminatory motive that satisfies the burden of describing a prima facie case,” the court held.

To rebut Hare’s prima facie case, DMM pointed to numerous legitimate, nondiscriminatory reasons for firing Hare, including: (1) his responsibilities could be managed from Dallas at a lower cost; (2) Hare did not maximize the mart’s earning potential; (3) Hare worked short hours and was not actively involved in day-to-day operations; and (4) Hare had an insubordinate attitude towards ARI’s Dallas management and he employed an intimidating and ineffective management style. Hare successfully demonstrated these reasons were pretext by pointing to contradictions in the testimony of the decisionmakers who fired him. “Pretext can be shown by such weaknesses, implausabilities, inconsistencies, incoherences, or contradictions in the employer’s proferred legitimate reasons,” the court said. Although several of the decisionmakers said Hare was fired for performance reasons, at least one testified that his performance had nothing to do with his termination. Thus, the Court will allow the case to go to a jury to see if such inconsistencies were evidence of pretext.
The lesson here is quite simple; get your story straight. When you have multiple decisionmakers determining whether to terminate an employee, be sure they all agree on the reason that person is being let go. Moreover, document the minutes of the meeting at which the decision to terminate is made and specifically document the reason for the termination. As you can see, court’s will consider inconsistencies as evidence of pretext. Thus, such documentation is invaluable should the terminated employee sue you for discrimination and claims your stated legitimate, nondiscriminatory reasons are pretext for discrimination.

Brody and Associates regularly counsels management on all aspects of labor and employment law and ensuring compliance with all federal, state and local labor and employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560. ]]> http://brodyandassociates.com/inconsistencies-in-employers-reasons-for-terminating-64-year-old-employee-could-lead-to-liability/feed/ 0 http://brodyandassociates.com/goodyear-ends-its-employee-rating-system-as-lawsuit-is-filed/ http://brodyandassociates.com/goodyear-ends-its-employee-rating-system-as-lawsuit-is-filed/#comments Tue, 15 Oct 2002 22:50:47 +0000 Robert G. Brody http://brodyandassociates.com/?p=776   Goodyear Tire & Rubber Co. recently abandoned its employee performance rating system, just as a class-action age discrimination lawsuit regarding the system was filed. The so-called “ABC” evaluation system rates the performance of employees on a curve, grading the top 10% with an “A,” the middle 80% with a “B,” and the bottom 10% with a “C.” Typically, employees falling in the bottom 10% are not eligible for raises or bonuses and some are warned they might lose their job.The lawsuit alleges the workers who got “C” ratings were targeted because they were older and were humiliated and stigmatized among their peers and managers. As discovery progresses, the plaintiff’s hope to show that a disproportionate number of older workers were fired or denied raises during the time the system was in place.

In March, Ford Motor Company quit handing out “C’s” to its bottom 10% and paid $10.6 million to settle an age discrimination suit filed over a similar rating system. AARP has pledged to provide legal resources to those suing Goodyear.

Should you have any questions about this article, please call or e-mail Brody and Associates, LLC. We can be reached at 203.965.0560 or info@brodyandassociates.com. ]]> http://brodyandassociates.com/goodyear-ends-its-employee-rating-system-as-lawsuit-is-filed/feed/ 0 http://brodyandassociates.com/applying-estoppel-theory-ada-claim-for-worker-unable-to-work-full-time-dismissed/ http://brodyandassociates.com/applying-estoppel-theory-ada-claim-for-worker-unable-to-work-full-time-dismissed/#comments Fri, 18 Jan 2002 15:14:28 +0000 Robert G. Brody http://brodyandassociates.com/?p=1440 Employees employed for full-time jobs must be capable of working full time ruled the United States Court of Appeals for the Seventh Circuit in DeVito v. Chicago Park Dist., 270 F.3d 532 (7^th Cir. 2001).  In a claim brought under the Americans with Disabilities Act (ADA) the court found the ADA does not protect an employee who had not worked full time for 13 years and was unable to maintain a full-time job. 

The employee, a park laborer, hurt his back in 1979 and was unable to return to work.  In 1985 under a “light duty” program initiated by his employer, he was given the job of answering telephones.  He had authorization to leave work whenever he felt pain or stress.  The employee typically worked two to three hours but was paid for a full eight-hour day.  After four years of light duty work, the employee was observed on videotape twisting, climbing, etc., and was fired by his employer.  During his internal appeal hearing, the employee testified that he was ready, willing and able to return to any position that was not as demanding as his former position as a laborer.  His appeal was rejected and the decision to terminate was upheld. 

The employee then commenced an action in United States District Court for the Northern District of Illinois.  In a bench trial, the judge found that since the employee was not capable of working full time even with an accommodation, he was not protected by the ADA.  The Court of Appeals affirmed the decision relying however on a “more fundamental objection to plaintiff’s claim” – the doctrine of estoppel.  Applying that doctrine, the court ruled even if plaintiff’s claim to be totally disabled was initially false (which it was) he was forbidden  from denying it to his unsuspecting employer to whom the representation was made.   Employers should keep this principal in mind when dealing with ADA issues including  light duty assignments, return to full-time work and reasonable accommodations.  Brody and Associates has counseled employers on these and other ADA issues.