Discrimination and Harassment

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Does any employee believe that interrupting a meeting of company executives and mooning them would not get you fired?  Well, we found one who does, and he even went to court over his belief.  His story is a good reminder about handling awful behavior and terminating employees the right way.

As reported yesterday, Jason Selch worked for an asset management company that, through some mergers, became a subsidiary of Bank of America.  He was upset with his proposed compensation after the merger.  He got even angrier when a co-worker he liked was fired after refusing to accept a lower compensation plan.  So, Selch decided to protest in his own, special way — he burst into a meeting of executives and, after confirming he was not subject to a non-compete, he mooned the executives and left.

Last week a California Appeals court ruled that a decision not to renew an expiring employment contract cannot form the basis of a wrongful termination case. Nicollette Sheridan, former co-star of the one-time hit television drama “Desperate Housewives,” lost her wrongful termination claim against the show, the network, and its creators when the court ruled that she was not “fired, discharged or terminated.” Instead, the network exercised its option not to renew her employment contract.

As my colleague considered several months ago, organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to counter the prejudices many have against obese individuals.  As part of its efforts, NAAFA is working to establish federal and state laws making obesity a protected class.  To date, however, these efforts have only resulted in one state (Michigan) and a handful of cities passing laws making weight-based discrimination illegal.

While efforts to make obesity a protected class have not been especially successful, there has, however, been more movement towards the greater recognition of obesity as a disability under the Americans with Disabilities Act (ADA).   My colleague previously noted that a federal district court in Louisiana had found that an employee who weighed 527 pounds at the time of her termination was “an individual with a disability” as defined under the ADA.

HR professionals generally want to give wayward employees opportunities to do better. So, situations commonly arise where an employee who consistently violates work rules and demonstrates less than professional behavior is given multiple chances to improve. Inevitably, most of the time such an employee fails to fully improve and the time comes to let the employee go. And just as inevitably, when he is terminated the employee contends that he should not have been terminated and 1) seeks unemployment compensation, 2) files an EEOC charge, and/or 3) sues for discrimination, harassment, retaliation, and whatever else he can conjure up. Suddenly all of your good intentions are thrown back in your face, leaving you wishing you would have just fired the employee without giving him all those additional chances to try to improve.

In a recent case out of New Jersey, the employer learned a very tough lesson on the pitfalls of second chances.

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

I spent a day earlier this week representing a client in an EEOC on-site investigation.  The investigator interviewed numerous company officials.  At the start of each interview, the investigator stated that the EEOC is a “neutral third-party.”

While the EEOC is supposed to be neutral, many actions and positions taken by the EEOC leave companies (and their counsel) shaking their heads over this assertion of neutrality.  While the particular investigator I dealt with this week was quite professional, personable and reasonable, most other experiences with the EEOC make it hard for her and her peers to be viewed as neutral by any employer.

For instance, just this week the EEOC tweeted the following:

A New York federal court recently dismissed a lawsuit filed by Cuttino Mobley  against the New York Knicks.  Mobley, a ten-year veteran of the NBA, claimed that the Knicks discriminated against him because he suffers from hypertrophic cardiomyopathy, a potentially-fatal condition which causes thickening of the wall of the heart.

Mobley argued that the Knicks unlawfully released him after learning about his heart condition.  According to Mobley, he could safely perform the essential functions of his job as a basketball player, and to him this was proven because he had done so for the past ten years (while he was apparently already afflicted with the heart condition ).  However, the Knicks sent Mobley to see two cardiologists, and both doctors determined that it was not safe for Mobley to play basketball with his heart condition.  To the Knicks, this meant he was not qualified to perform the essential functions of his job.

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.

I have recently written about cases where discrimination and retaliation led to large verdicts and huge liability for employers.  These cases remind us that hostility at work, in the form of discrimination and harassment, is wrong and expensive.  An additional example from just this week shows what happens when harassment occurs and is allowed to continue, and ends up out of control.

This past Tuesday, a federal jury in New York awarded $25 million to a steel plant worker on his mind-boggling claims of racial discrimination, harassment and retaliation, as well as some tort claims for emotional distress.  That kind of verdict raises eyebrows for sure.  But what is even more startling is what the employee was subjected to by his co-workers and how his employer responded (or in most cases, failed to respond).