EEOC Issues New Guidance on Religious Discrimination and Accommodation in the Workplace.

Noting that the number of religious discrimination charges had more than doubled between 1992 and 2007, yesterday the EEOC issued new compliance guidance to employers about workplace discrimination on the basis of religion. This new guidance involved a new section for the EEOC compliance manual, a Q&A for employers of common issues and a manual of best practices. Among other things, the guidance addresses an employer’s options when an employee proselytizes at work and/or objects to performing a job duty – such as providing birth control – because of religious beliefs. It also addresses potential First Amendment concerns and what constitutes "undue hardship" for purposes of denying a requested accommodation.

“Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. . . . Religion includes not only traditional religions like “Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Some courts have held that Title VII also protect members of the wiccan faith. Nonetheless, “mere personal preferences are not religious beliefs.”

“The prohibition against disparate treatment based on religion also applies to disparate treatment of religious expression in the workplace. For example, if an employer allowed one secretary to display a Bible on her desk at work while telling another secretary in the same workplace to put the Quran on his desk out of view because co-workers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,” this would be differential treatment in violation of Title VII.”

Once an employer is on notice that a religious accommodation is needed, Title VII requires the employer “to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. Note that this is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act (ADA) which is defined in that statute as “significant difficulty or expense.”

For instance, a “government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.”

“An accommodation would also pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.”

“Although religious accommodations that infringe on co-workers’ ability to perform their duties or subject co-workers to a hostile work environment will generally constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work. If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations."

“Title VII requires employers to accommodate only those religious beliefs that are religious and “sincerely held,” and that can be accommodated without an undue hardship. Although there is usually no reason to question whether the practice at issue is religious or sincerely held, if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.”

There are a variety of methods to provide reasonable accommodations to its employees, including: changing work schedules, permitting voluntary shift swapping, changing an employee’s job tasks or providing a lateral transfer; making an exception to dress and grooming rules to permit religious clothing or beards, etc.; permitting the use of the work facility for a religious observance (like prayers); accommodating religious objections to the payment of union dues or agency fees through donations to charities; and accommodating prayer, proselytizing, and other forms of religious expression among non-objecting co-workers.

“Some employees may seek to display religious icons or messages at their work stations. Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others. Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study. In some of these situations, an employee might request accommodation in advance to permit such religious expression. In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers. “

According to the EEOC, “employers should not try to suppress all religious expression in the workplace. Title VII requires that employers accommodate an employee’s sincerely held religious belief in engaging in religious expression in the workplace to the extent that they can do so without undue hardship on the operation of the business. In determining whether permitting an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, relevant considerations may include the effect such expression has on co-workers, customers, or business operations.”

For example, “if an employee’s proselytizing interfered with work, the employer would not have to allow it. Similarly, if an employee complained about proselytizing by a co-worker, the employer can require that the proselytizing to the complaining employee cease. Moreover, if an employee was proselytizing an employer’s customers or clients in a manner that disrupted business, or that could be mistaken as the employer’s own message, the employer would not have to allow it. Where the religiously oriented expression is limited to use of a phrase or greeting, it is more difficult for the employer to demonstrate undue hardship. On the other hand, if the expression is in the manner of individualized, specific proselytizing, an employer is far more likely to be able to demonstrate that it would constitute an undue hardship to accommodate an employee’s religious expression, regardless of the length or nature of the business interaction. An employer can restrict religious expression where it would cause customers or co-workers reasonably to perceive the materials to express the employer’s own message, or where the item or message in question is harassing or otherwise disruptive.”

When an employee objects to a particular job duty or task (such as providing birth control or the “morning after pill” or singing “happy birthday”) on the basis of a religious belief, the employer should consider “appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict. Whether such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a CBA or seniority system. The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. “ By way of example, the EEOC described the following situations:

1) “Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service.” If the manager refuses any accommodation to Kim, she would likely prevail in a Title VII action “because the restaurant could have accommodated her with little or no expense or disruption.”

2) “Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.”

3) Alternatively, if instead, “Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.”

“The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position. Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.

Insomniacs can read the EEOC press release in full at http://www.eeoc.gov/press/7-22-08.html and the other EEOC materials on religious discrimination in full at http://www.eeoc.gov/policy/docs/qanda_religion.html and http://www.eeoc.gov/policy/docs/religion.html and http://www.eeoc.gov/policy/docs/best_practices_religion.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Appeals Court Guarantees Higher Salary of Classified Employee Who Was Demoted Without Cause from Unclassified Position to Former Classified Position

In late June, the Hamilton County Court of Appeals held that a civil servant carrying the full protections of a classified employee but employed in an unclassified position is entitled to retain the pay of that unclassified position after a demotion back to a civil service job when the demotion was not based upon cause and the employer failed to obtain a signed waiver from the employee (in accordance with its own rules) when temporarily promoting him to the unclassified position (which was later abolished). Gissiner v. City of Cincinnati, No. 2008-Ohio-3161 (6/27/08). The Court held that only O.R.C. § 124 protected a classified employee from a pay cut for no-cause demotion, although it did not provide him with bumping rights because the unclassified position was not covered by the statute.

By way of background, the plaintiff was "temporarily promoted" from classified position of Senior Human Resources Analyst to the unclassified position of acting municipal investigations manager for the City. However, although he received a raise with the promotion he “did not did not sign a waiver giving up his classified status when he changed positions.” When the managerial position was later abolished in a reorganization, he was returned to his former classified position and the lower pay rate.

In the first phase of litigation, the plaintiff appealed both the demotion and his pay cut to the civil service commission, which dismissed the claim for lack of jurisdiction. However, the court of appeals reversed “because Rule 1.4(2)(A) of the city's Personnel Policies and Procedures Manual required a written waiver of classified status, and because the City had not secured [the plaintiff’s prior] waiver in accordance with [that] rule.” Accordingly, “[t]he case was remanded for an administrative hearing so that the commission could determine whether [the plaintiff’s] demotion was contrary to his property right to maintain his pay during ‘good behavior and efficient service.’”

At the next civil service hearing in the second phase of the litigation, the plaintiff “testified that he was reduced in pay by $32,106.86, that he had served as Manager for over 15 months in good behavior, and that he had received the assurances of several city officials, including two city managers, that he would not be reduced in pay. His testimony was not refuted.” Nonetheless, the civil service commission again affirmed the plaintiff’s demotion and pay cut, but on different grounds. The Court then held that “c]lassified civil servants have tenure during ‘good behavior and efficient service,’ can be discharged or reduced only for cause as set forth in R.C. 124.34, and have displacement rights if their jobs are abolished. Because [the plaintiff] did not waive these rights, he carried them with him to his unclassified position.”

While the Court acknowledged that O.R.C. § 124 did not apply to make the unclassified position a permanent classified position or to give the plaintiff bumping rights, “[o]ne could only conclude from the evidence presented to the commission that [the plaintiff] was reduced in pay and that this reduction contravened his rights as an employee with classified status.” In addition, “the City is estopped from opposing an award of back pay because it created this anomaly by failing to secure [the plaintiff’s] written waiver of his classified status, as required by its own rule, and by promising that [the plaintiff] would not be reduced in pay. We will not penalize [the plaintiff] under these circumstances.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3161.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appellate Court: National Bank Act Pre-empts Ohio Discrimination Claim, But Question Exists Whether Board Properly Terminated Plaintiff under NBA

Late last month, the Summit County Court of Appeals held that the National Bank Act pre-empted the state law gender discriminatory treatment claims of a discharged business banking officer, but not her state law retaliatory discharge claims. Boesch v. Champaign National Bank, No. 2008-Ohio-3282 (6/30/08). While the undisputed evidence showed that the plaintiff was a bank “officer” who was appointed by the bank’s board of directors, there was an evidentiary question as to whether she was discharged by the bank’s president or the board because of the manner of preparation and presentation of the board’s minutes and an amendment concerning her termination.

The Court recognized that the power granted to banks by the National Bank Act “to appoint and dismiss officers at ‘pleasure’ conflicts with the Ohio statutory provisions precluding employment discrimination and retaliation.” While the National Bank Act, 12 U.S.C. § 24 (Fifth), gives national banks the power: "[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places, " the Ohio Civil Rights Act State Act, O.R.C. § 4112.02(A), in contrast provides that “ it is an unlawful discriminatory practice: [f]or any employer, because of the race, color, religion, sex, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” Moreover, “[w]ith respect to retaliation, state law provides that it is an unlawful discriminatory practice: [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code."

The court was faced with deciding whether the National Bank Act preempted state law under the constitution’s supremacy clause and recognized that the Sixth Circuit regularly recognized this preemption. Because the plaintiff had been properly hired by the bank president with authority from the bank’s board of directors and the decision was properly ratified by the bank’s board, the court found that the evidence showed that she was a bank “officer” covered by the National Banking Act. Therefore, the court concluded that her state law discrimination claims were pre-empted by federal law.

However, the Court also concluded that there was an evidentiary question as to whether her discharge was authorized and/or ratified by the bank’s board of directors. The bank’s president discharged the plaintiff and during litigation submitted an affidavit asserting “that the bank's board of directors terminated [plaintiff] and that such action is reflected in an amendment to the minutes of the meeting in which the board made that decision.” The plaintiff questioned the authenticity of the board minutes because “the amendment was undated and dealt with no other bank business . . . [and the bank] did not provide the original minutes of the board's meeting. She alleges that the amendment appears to have been created for litigation purposes and concludes that there is a question as to whether the ratification was "prompt" and appropriate under the NBA.” The Court agreed that these were valid evidentiary issues for a jury to resolve. Moreover, the court was “unable to determine from the record whether the board had delegated its authority to Lamping to terminate Boesch. . . . [raising] the issue of whether [plaintiff’s] termination was accomplished by the board of directors, or whether it was an individual action” by the bank president.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-3282.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Snags Another Non-Union Employer with Confidentiality Provision in Employment Agreement.

Late last month, the NLRA concluded that a temporary agency twice violated the National Labor Relations Act when it discharged an employee for breaching an unlawful term in his employment agreement requiring him to maintain the confidentiality of the terms of his compensation. Northeastern Land Services, Ltd. d/b/a The NLS Group and Jamison John Dupuy, Case 1–CA–39447 (NLRB 6/27/08).

The employer temporary agency leased employees to third parties. There is no indication that either the temporary agency employer or its client employers were unionized. The temporary agency employer allegedly violated Section 8(a)(1) of the NLRA “by maintaining in its employment contracts an overbroad confidentiality provision and by terminating [the complaining] employee . . . for breaching that confidentiality provision.” In particular, the temporary agency required its employees to sign an employment which contained the following clause: “Employee also understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.” The clause did not limit the confidentiality obligation to disclosing the information to competitors or clients, and thus, could unlawfully encompass unions.

After he began work, the employee began to experience problems with getting paid in a timely manner. After complaining to the temporary agency, he also complained to the leasing employer. In addition, the leasing employer had promised him a daily stipend for using his personal laptop at work, but when the temporary agency indicated that it planned to reduce this stipend, the employee objected to both the leasing employer and the HR Coordinator of the temporary agency. He also asked the leasing employer to retain him through another temporary agency if these problems could not be resolved and then refused to bring his laptop to the job site any longer.

The temporary agency CEO then notified the employee that they felt that they had done enough to accommodate him, that nothing would make him happy and that he was being terminated. When he objected (on the grounds he had engaged in protected conduct by filing a complaint with a state agency), the CEO responded that the employee had “not lived up to [his] end of the bargain” in that he had failed “to comply with his contractual agreement—i.e., the confidentiality provision in the temporary employment agreement—not to disclose the terms of his employment to outside parties.”

The NLRB articulated its standard for determining the validity of work rules under the NLRA. “If the rule explicitly restricts Section 7 activity, it is unlawful. If the rule does not explicitly restrict Section 7 activity, it is nonetheless unlawful if (1) employees would reasonably construe the language of the rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In applying these principles, the Board refrains from reading particular phrases in isolation, and it does not presume improper interference with employee rights.” (citations omitted).

In this case, the confidentiality provision in the temporary agency’s employment agreement “is unlawful because employees reasonably would construe it to prohibit activity protected by Section 7. Specifically, . . . the provision, by its clear terms, precludes employees from discussing compensation and other terms of employment with ‘other parties.’ Employees would reasonably understand that language as prohibiting discussions of their compensation with union representatives.” Therefore, “the confidentiality provision is unlawfully overbroad at least in this respect, in violation of Section 8(a)(1).”

“Under extant Board precedent, an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act.” Because the employee was fired to violating “an unlawfully overbroad” rule, his termination was also a separate violation of the NLRA.

The Board then ordered the temporary agency to rescind the confidentiality provision from its employment agreements and other publications, to re-hire the employee to the same or substantially similar job with full back pay and benefits, to eliminate any references in its records to the discharge of the employee, to post a standard notice of its NLRA violation and to mail a notice “to all current and former employees employed by the [temporary agency] under its temporary employment agreement (including but not necessarily limited to its right-of-way agents) since July 23, 2001, the date from which the complaint alleged and we have found that the [temporary agency] maintained the overbroad confidentiality provision in its temporary employment agreement.”

Insomniacs can read the full decision at http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.htm&size=147.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Dismisses Supervisor’s Defamation Claims Against Union Officer.

The Trumball County Court of Appeals affirmed the dismissal of a libel suit brought by a beleaguered night-shift supervisor against a local union officer arising out of statements made about the manager in the union newsletter more than ten years ago. Jacobs v. Budak, No. 2007-T-0033 (6/9/08). In the article, the supervisor was referred to as the “midnight cowgirl” and was accused of not following the collective bargaining agreement in assigning overtime opportunities. The Court ultimately affirmed dismissal of the lawsuit because the supervisor could not show with clear and convincing evidence that she suffered actual harm from the article or that the union officer acted with actual malice (i.e., actual knowledge of the falsity, or reckless disregard for the truth, of the statements).

Following the publication of the union newsletter, the supervisor “was subjected to callow harassment by her employees and fellow co-workers. [She] testified that the harassment lasted for a period of two to three months following the publication of the article and that she was subjected to numerous cat-calls and “mooing” sounds as she walked or drove her scooter through the plant. She received prank phone calls where unidentified persons would yell such quips as “yippy-ti-yi-o,” “moo-ooo”, and “got your spurs on.” In addition, cow horns and a cowboy hat were placed on her work scooter subjecting her to further ridicule as she drove through the plant.”

Because the dispute arose out of a “labor dispute” (i.e., a dispute between management and a union over the bargaining agreement and other terms and conditions of employment), the supervisor was required to prove her claim by clear and convincing evidence (which is a higher standard of proof than the regular preponderance of the evidence or more likely than not standard used in most civil cases). She was also required to prove that the allegedly false and defamatory statements were made with actual malice without privilege to a third party and that she suffered actual damage from the statements. “A statement is published with actual malice when it is made with the ‘the knowledge that it was false or with reckless disregard of whether it was false or not.” The Ohio Supreme Court has previously noted that “[a]ctual malice ‘cannot be implied from the character and content of a publication. *** It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity.’”

Therefore, “[m]ere negligence is not enough to establish actual malice . . . Thus, ‘reckless conduct is not measured by whether a reasonably prudent man *** would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’” In fact, courts have been clear that the failure to investigate has been found to constitute malice only “where the defendant has serious doubts that the statement is true.”

In this case, the union officer was able to show that he conducted an investigation and there was some factual basis for his allegations against the supervisor. Although the supervisor alleged that the union officer conducted his investigation negligently, even if that were true, the court found “no evidence that [the union officer] had any serious doubts as to the veracity of the statements.”

“It is clear that access to equalization records was an ongoing debate as the issue was discussed in union-management meetings before, during, and after the article was released. Indeed, [the defendant union officer] was not even familiar with Ms. Jacobs until he was ordered to investigate [an employee’s] complaints in early May of 1997 by his supervisor. Although the statements were certainly negligently made, we cannot say that they were made with such reckless disregard or knowledge as to their falsity.”

The Court also concluded that the supervisor was required to prove actual damages from the allegedly defamatory statement because it arose out of a union dispute and that she failed to do so. “As evidenced by the numerous medical records that were entered into the record, [the supervisor] has a long history of physical and mental distress that may or may not have been exacerbated by this incident. According to her employment evaluations and her own testimony, her employment was unaffected. Indeed, following the release of the article she was given a six percent raise and has been consistently rated in her job performance as “satisfactory” or above. The testimony and medical records [the supervisor] did submit failed to evidence that the article was the proximate cause for the stress she was facing at that time. Indeed, [her] own physician, Dr. Meyers, could not differentiate between the stress that was caused by the article and the stress that resulted from the ensuing legal battle.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-2756.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney

JCAHO To Require Healthcare Organizations to Stop Workplace Bullying

On July 9, 2008, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued a Sentinel Event Alert amending its Leadership Standards and requiring accredited healthcare organizations beginning on January 1, 2009 to (1) create codes of conduct which define acceptable and disruptive and inappropriate workplace behaviors and (2) create and implement a process for managing disruptive and inappropriate behaviors. The JCAHO also amended the Medical Staff standards to incorporate six core competencies to be addressed in “the credentialing process including interpersonal skills and professionalism.”

The JCAHO explained that it was taking this action because “intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse consequences, increase the cost of care and cause qualified clinicians, administrators and mangers to seek new positions in more professional environments. Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment.”

While recognizing that workplace bullies have contributed much to this endemic problem, not all “such behaviors [are] confined to the small number of individuals who habitually exhibit them . . . It is important that organizations recognize that it is the behaviors that threaten patient safety, irrespective of who engages in them.”

“Organizations that fail to address unprofessional behavior through formal systems are indirectly promoting” a culture “of tolerance and indifference to intimidating and disruptive behaviors in health care.” Granted, the recurrence of dealing with highly emotional and stressful situations “can contribute to occasional intimidating or disruptive behavior, particularly in the presence of factors, such as fatigue. Individual care providers who exhibit characteristics such as self-centeredness, immaturity or defensiveness can be more prone to unprofessional behavior” and lack interpersonal, coping or conflict management skills.

In addition to the mandatory standards for addressing this problem, the JCAHO recommends that organizations take an additional thirteen steps, including:

* Educate all staff on appropriate professional behavior defined by the organization’s code of conduct with an emphasis on mutual respect. The training should include basic business etiquette, telephone skills, customer service and other basic people skills.
* Hold all staff accountable for modeling desirable behaviors and enforce the code consistently and fairly among all staff, regardless of seniority or clinical discipline. This should include both positive and negative reinforcement where appropriate.
* Develop and implement policies and procedures which address zero tolerance for egregious instances of disruptive behavior (such as assault, threats and other criminal acts). These standards should be incorporated into bylaws and employment agreements as well. Physicians and staff should be held to the complementary standards. Staff should be encouraged to report and cooperate in investigations of disruptive behavior by including non-retaliation statements into all policy statements.
* “Provide skills-based training and coaching for all leaders and managers in relationship-building and collaborative practice, including skills for giving feedback on unprofessional behavior and conflict resolution. Cultural assessment tools can also be used to measure whether or not attitudes change over time.”
* “Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombuds services and patient advocates.”
* “Support surveillance with tiered, non-confrontational interventional strategies, starting with informal “cup of coffee” conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety. Make use of mediators, and conflict coaches when professional dispute resolution skills are needed.”

Insomniacs can read the Alert in full at http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm. The Alert does not address what will happen to Dr. Greg House when these standards become effective.:)

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Expands Right to Sue for Discriminatory Constructive Discharge and Demotion.

Last month, a unanimous Franklin County Court of Appeals reversed summary judgment previously entered in favor of an employer in an age discrimination case. Coryell v. Bank One Trust Co., 2008-Ohio-2698 (6/5/08). The Court made several significant holdings. First, the Court held that a plaintiff could show under certain circumstances that s/he had been discharged even if the employee voluntarily chose a severance pay option instead of remaining employed for an indefinite period of time. Second, the Court concluded that a plaintiff could pursue a claim for discriminatory job conditions -- such as a lesser job title and/or decreased responsibilities -- which fell short of a constructive discharge, even without a commiserate decrease in pay. Finally, the Court found sufficient evidence which the jury could use both to disbelieve the Bank’s non-discriminatory explanation for its conduct and to base a finding of discriminatory intent.

The Background

Plaintiff had been the Senior Vice President for the group “which handled the administration and servicing of institutional accounts involving assets subject to trust or other custody requirements. During his tenure, [the plaintiff] was active in direct client relationships and assumed full responsibility for all relationships that were threatening litigation due to problems predating [his] hire. In 2000, despite his experience handling direct client relationships, his supervisor directed him to no longer “maintain direct, selective account responsibilities” and he ”transitioned his accounts to individuals within his organization.” Following a reorganization and change in group leadership, the plaintiff became responsible for managing 28 employees. When discussions began about moving Plaintiff’s team to another group shortly thereafter, Plaintiff supported the move, outlined his suggestions for his role in the new group, and suggested that his management role be eliminated and he transition to a player-coach. However, because Plaintiff had no clients of his own and had been performing only as a manager for a few years, the new group declined to offer him a position after the move. Instead, Plaintiff’s duties were distributed between three other managers (one of whom assumed his former job title, received an increase in compensation and received a 300% increase in his bonus the following year).

Plaintiff continued on the payroll of his former supervisor at the Bank and was rejected for two open positions for which he applied. He was then offered severance and the option of remaining on payroll for an unspecified period of time or risking a six-month reduction in severance payments under the Bank’s new severance plan if he did not act quickly. After suffering a heart attack, Plaintiff accepted the severance option with a one-year salary continuation period and continued to search for another job within and outside the Bank. After finding a position outside the Bank, he filed suit and claimed he had been discriminated against on account of his age.
The common pleas court found factual dispute existed as to whether Plaintiff was qualified for the management position with the new group (which existed after his position was allegedly eliminated) and whether he was replaced by someone substantially younger than himself. Nonetheless, the common pleas court found, as a matter of law, that Plaintiff “was neither directly nor constructively discharged because he chose between meaningful options when he accepted the severance package” and, therefore, Plaintiff was unable to establish that he suffered from an adverse employment action as required to carry his prima facie case.

Existence of Constructive Discharge

In prior Supreme Court cases, the court has held that the prima facie case cannot be satisfied when the plaintiff chose severance instead of other options which would have preserved the plaintiff’s employment. For instance, in Barker v. v. Scovill, Inc., 6 Ohio St.3d 146, 147 (1983). the plaintiff had been “offered both termination with severance pay and layoff options, but was also given the opportunity to transfer to another plant.” She also “confessed that her refusal to accept the transfer was not based on the inherent undesirability of the offered employ; it was predicated on her belief that she " * * * could duplicate * * * [her] salary some place else." As a result, because she “made a conscious, well-informed, uncoerced decision, [s]he should not now be allowed to cry foul” later.

“When a plaintiff chooses termination in lieu of other options, courts will not construe his decision as an actual discharge. Rather, the plaintiff must show that he was constructively discharged, i.e., that his or her choice of termination was involuntary or coerced. . . . . Courts generally apply an objective test to determine whether a plaintiff was constructively discharged, asking "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign."

The Supreme Court has explained that “In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the "discharge" label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of coemployees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group. Nor does the inquiry change solely because an option to transfer is thrown into the mix, lateral though it may be. A transfer accompanied by measurable compensation at a comparable level does not necessarily preclude a finding of constructive discharge. * * * A sophisticated discriminating employer should not be permitted to circumvent the statute by transferring an older employee to a sham position as a prelude to discharge.”

The Court of Appeals concluded that Plaintiff produced sufficient evidence to create a question for the jury about whether his discharge was imminent. The Bank “stripped him of his title, position, responsibilities, functions, supervisory role, and involvement in day-to-day operations and management, leaving him with no real position. [The new group leader] informed [Plaintiff] that he would not retain him as Managing Director of the National Accounts Group and informed the National Accounts Group that Kozak would immediately assume management responsibilities. [The new group leader] also told [Plaintiff] that he would not provide him another position in the National Accounts Group. Additionally, [the former supervisor] told [Plalintiff] that [the new group leader] was not amenable to [Plaintiff] obtaining any internal position related to institutional investment management. [Plaintiff] applied for two internal positions prior to accepting the severance package, but he was rejected for both positions. [the former supervisor] "highly recommended" that [Plaintiff] accept a severance package because [he] "did not have a position" and because [the supervisor] believed that [Plaintiff] would not be able to secure another position within” the bank. Plailntiff “understood that [his former supervisor] saw his own future with Bank One as "uncertain" and that he did not know how long he would be able to maintain [him] on the payroll. . . . Moreover, the severance package specifically provided that [plaintiff] could continue to seek a new internal position and, thus, simply guaranteed [Plaintiff] a continued salary and benefits while searching for a new position within the organization.”

Even though the Bank did not transfer Plaintiff, it “stripped him of all attributes of his former position, essentially leaving him in a non-existent position.” While Plaintiff remained on the payroll of his former supervisor’s group, Plaintiff “had no title, responsibilities or duties.” In that Plaintiff’s understood the tenuous nature of his former supervisor’s “own continued employment and Natsis's recommendation that [Plaintiff] accept the severance package, [Plaintiff] could reasonably have believed that termination was imminent should he reject the severance package. The record contains ample evidence that [he] desired to continue working for the Trust Group and made attempts to find another position within the organization both before and after accepting the severance package, but, in light of comments” by the leaders of the new and former groups, Plaintiff “could have reasonably believed that he would not be successful in obtaining a new internal position. ‘[T]here is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label.’ Ultimately, viewing the evidence in the light most favorable to Coryell, we find that genuine issues of material fact remain as to whether Coryell was constructively discharged.”

Age Discrimination Without Discharge from Employment

In addition, the Court acknowledged that an age discrimination claim is not limited to wrongful discharge claims. Even where the employee is unable to show that s/he was constructively discharged, employees may pursue claims for age discrimination whenever they have suffered an adverse employment action in connection with discharge, hire or other terms and conditions of employment. “Whether a specific action constitutes an adverse employment action is determined on a case-by-case basis. . . . Generally, an adverse employment action is defined as a material adverse change in the terms and conditions of employment. . . . . Employment actions that result only in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.”

“[A] job transfer resulting in a less distinguished title or significantly diminished responsibilities can constitute an adverse employment action. * * * As well, an employer's decision to transfer an employee to a different department, remove her from her management position, place her under the supervision of the person who took her former management position, assign her less job responsibilities that do not comport with her qualifications and give her negative comments on surprise performance evaluations can be classified as adverse employment actions despite no loss of wages or benefits.” For instance, in Bhat v. Univ. of Cincinnati, Ohio Ct. of Cl. No. 2000-04723, 2003-Ohio-5623, “the Court of Claims determined that the plaintiff demonstrated an adverse employment action where the University of Cincinnati removed her titles of director of cardiac transplantation and director of the heart failure program, despite maintaining her as a full professor with no loss of pay or benefits. The court found that the loss of the "director" titles had a significant effect on the plaintiff's status; "[s]he lost not only the prestige associated with the director's title, but also the level of responsibility and the perception of her professional capabilities associated with those roles." Likewise in Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App. No. 98AP-1278, actionable discrimination was found “where the employer abolished the plaintiff's job-share arrangement, stripped the plaintiff from her position and title, reassigned her job duties to younger male employees, and initiated a salary audit that resulted in her position being reclassified to a lower pay band.”

In this case, the Court concluded that Plaintiff could pursue an age discrimination claim even if he had not arguably been discharged. The decision to not “retain [Plaintiff] as Managing Director of the National Accounts Group, to reassign [his] management and supervisory responsibilities” to a significantly younger manager who formerly reported to him, and “to not provide [him with] another position within the National Accounts Group had a materially adverse effect on the terms and conditions of [his] employment. Although [Plaintiff] technically remained employed, with no loss of salary or benefits, after Abunassar removed him from his position as Managing Director, Abunassar's actions left [Plaintiff] with no title, no authority, no responsibilities, and limited prospects of continued employment. At a minimum, [the Bank] contends that [it] eliminated [Plaintiff’s] position. Such an action had an adverse effect on the terms of Coryell's employment.”

Evidence of Pretext

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . . . A fact finder's disbelief of the employer's articulated reason does not compel judgment for the plaintiff. Before a plaintiff is entitled to judgment, the fact finder must not only disbelieve the employer, but must also believe the plaintiff's explanation of discrimination. Reeves at 147, citing Hicks at 519. However, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer's] explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves at 147. Thus, a plaintiff need not always introduce independent evidence of discrimination to show pretext where there is sufficient evidence to reject the employer's explanation.”

The Court found there was sufficient evidence for the jury to disbelieve the Bank’s explanation for Plaintiff’s treatment and to infer the existence of age discrimination. ”First, only months before Abunassar removed [Plaintiff] from his position, [he] was selected to create and lead the National Accounts Group, based on his relevant experience and knowledge. All evidence suggests that [he] was successfully performing his role of Managing Director, and Abunassar admitted that he had no issues with Coryell's performance.” In his own affidavit, Plaintiff stated that his former supervisor stated that he “should manage the [National Accounts Group under Abunassar], as I was the most qualified." Plaintiff’s former supervisor ”testified that [Plaintiff] had been successful at Bank One, demonstrated technical knowledge, and was liked and supported by his subordinates. Second, while Abunassar desired the National Accounts Group manager to maintain a book of business, there is no dispute that Coryell's experience qualified him to resume direct client relationships. Until shortly before embarking on the creation of the National Accounts Group, Coryell successfully maintained a book of business, which he gave up at the direction of his former supervisor who, in direct contrast to Abunassar's business model, prohibited managers from maintaining books of business. Moreover, Coryell was willing and qualified to resume direct client relationships and suggested to Abunassar that he resume direct relationships and serve as a "player-coach," the very term Abunassar uses to describe his vision of the Managing Director role. The record contains evidence that certain accounts had not yet been transitioned to National Accounts Group employees, and the National Accounts Group organizational chart shows open Institutional Client Advisor positions, suggesting the availability of accounts for which Coryell could have assumed direct responsibility. Abunassar also admitted that, if he had wanted to assign Coryell accounts, he could have done so through the open investment relationship manager position for which Coryell interviewed, but was rejected. Such evidence discredits Abunassar's refusal to assign Coryell a book of business based on his reluctance to transition clients where unnecessary. Viewing the evidence in the light most favorable to Coryell, we find that a fact finder could reasonably disbelieve appellees' purported non-discriminatory reason for their actions relating to Coryell's position and employment.”

“Because the fact finder's disbelief of [the Bank’s] proffered non-discriminatory reason, coupled with evidence satisfying Coryell's prima facie case, would permit (although not compel) the fact finder to infer the ultimate fact of intentional discrimination, we find that [the Bank is] not entitled to judgment as a matter of law on Coryell's age discrimination claim. We do not suggest that Coryell will or should ultimately prevail on his age discrimination claim, but conclude only that the evidence, viewed in the light most favorable to Coryell, creates genuine issues of material fact, which preclude summary judgment. Accordingly, we find that the trial court erred in granting summary judgment in favor of [the Bank] , and we sustain Coryell's first assignment of error.

Insomniacs can read the decision in full at 2698 http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-2698.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Applicant’s Record of Impairment and Illegal Interview Questions Send Charitable Employer Back to Court for Alleged Violations of Rehab

Last week, the Sixth Circuit Court of Appeals reversed summary judgment in favor of The Salvation Army by the District Court in Columbus where the plaintiff job applicant alleged that he was denied a job after he responded to a question his job interview about whether he was taking any medications by describing the psychotropic medications he was taking. Doe v. Salvation Army, No. 07-3822 (7/1/08). The Court found that there was a factual dispute for the jury to resolve about whether the plaintiff was “disabled” under the Rehabilitation Act and whether he was rejected for employment based solely on that disability.

According to the Court’s opinion, the plaintiff “suffers from paranoid schizophrenia disorder. From 1995 through 2005, because of his condition, he was hospitalized or lived in various group homes. In 2005, still under medical supervision, Doe began working with job developer Cordell DeGraw at the Center of Vocational Alternatives (COVA) in Columbus, Ohio. Sometime in May 2005, DeGraw contacted Charles Snider, the supervisor of the Salvation Army’s Adult Rehabilitation Center (ARC) warehouse and arranged for Doe to be interviewed for a truck driver position with the Salvation Army.” When the plaintiff “arrived for the interview, Snider instructed Doe to fill out an application and . . . Doe responded that he could not work on Fridays because, “[he] had to see [his] doctor, and . . . pick up [his] medicine.” Snider asked Doe “what kind of medication” he took, and Doe responded, “psychotropic medicine.” According to Doe, at that point, Snider “stopped the interview and said that his insurance would not cover me.” Doe offered to obtain a letter from his doctor, but Snider refused to reconsider.” According to the Salvation Army, “Snider testified that he ended the interview saying, “[w]hat I’ll have to do is have this checked out,” meaning apparently, that he wanted to determine whether the ARC’s insurance policy would cover a driver using psychotropic medication. However, Snider never pursued an investigation into the insurance coverage and later hired nine other drivers.”

The plaintiff argued that he was covered by the Rehabilitation Act because he was a person with a record of an impairment which limits a major life activity. “Doe submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working.” While a person with only a record of a disability (in contrast to a present disability) would not require a reasonable accommodation, the Court determined that they were still protected from discrimination by the Rehabilitation Act.

The District Court determined that there was insufficient evidence that the Salvation Army was aware that Doe had a disability. However, the Court of Appeals noted that there was evidence that COVA informed the Salvation Army that “[w]e are an agency that works with people that have disabilities.” There was also evidence that the Salvation Army “was aware that COVA’s mission is to help individuals with disabilities and other challenges.

Nonetheless, the Rehabilitation Act only prohibits discrimination “solely” on the basis of the disability. “The Salvation Army argued, and the district court agreed, that Snider rejected Doe for safety concerns, not for reasons solely based on Doe’s disability. However, it was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, ‘I did not say flat out no,’ but rather, ‘I’ll have to check [the insurance] out.” As we now know, he did not do so.”

“An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. See Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000). The district court stated that “[c]ourts have unanimously held that an individual with a disability ‘cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.’” But in May 2005, Snider ended Doe’s interview not because he concluded that Doe’s employment as a driver would pose a risk to others, but because Snider “wasn’t going to take a chance” on Doe. The Rehabilitation Act’s implementing regulations state rather remarkably, to be sure, that potential employers may not ask questions “to determine whether the applicant is an individual with handicaps or the nature or severity of a handicap.” 24 C.F.R. § 8.13(a). Snider testified that he inquired as to what types of medications Doe was taking. . . . We think it supports, although it does not necessarily prove, Doe’s claim that the Salvation Army violated the Rehabilitation Act.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/073822p.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.