When an Affirmative Action Plan Constitutes Evidence of Reverse Discrimination.

Last month, the Ohio Court of Appeals in Dayton rendered a decision which highlights the need to conduct a focused availability analysis when preparing an affirmative action plan. In that case, the Court reversed a directed verdict in favor of the employer and reinstated a reverse race and gender discrimination claim for trial by a jury based, in part, on a sloppy affirmative action plan which relied simply on census data instead of a focused availability analysis. Mitchell v. Lemmie, 2007 Ohio 5757 (10/26/2007).

In Mitchell, the Plaintiff had applied to be promoted to a division manager position. That position had been filled by an African-American female who had no prior experience in that division (unlike the Plaintiff), who had worked her way up from a secretarial position and who had been placed in the position without any competitive hiring process. She and the Department Superintendent recommended to Lemmie, the City Manager, that plaintiff be promoted to replace her, but Lemmie refused without any explanation and a national search was conducted to fill the position. (This woman was also promoted two more times without a competitive process). The Plaintiff was ultimately ranked second of the available candidates and presumably should have received the job after the top and third ranked candidates withdrew from consideration, but Lemmie again without explanation refused to promote the Plaintiff into the position. There was testimony that she only gave the Plaintiff a brief courtesy interview for the job. She posted the job again for another national search, this time with an emphasis on recruiting qualified African-Americans. The position was then offered to an African-American male, who turned it down because of the low salary. The other two top candidates were rejected for other reasons. Finally, a female African-American was recommended to Lemmie and she was hired after applying and interviewing for the position. The successful candidate was paid $15,000 more than the Plaintiff had been paid while serving in an interim capacity.

The qualifications for the position remained the same throughout all of the searches.

Many years before the events of the litigation, the employer had adopted an affirmative action plan which professed a goal of employing individuals in the same number as reflected by the demographics of the local population. “While no applicant should ever be accepted or rejected for employment or promotion based solely on race or gender, the City recognizes Affirmative Action as a moral and legal responsibility. The race or sex of an applicant is a legitimate factor to be considered in selecting appointees to positions where certain demographic categories are underutilized from a group of candidates with nearly equal qualifications.” Ten percent of the performance evaluation of each division manager was to be based on compliance with the AAP. “Each department was given yearly objectives, which were to be included in the performance contract of each department director. These objectives were computed by a specific method, based on the percentages of African-Americans and women in the total general workforce of the City of Dayton (37% and 46%, respectively).” The AAP also provided that “[t]he formula used to calculate the number of minorities and females in the workforce was based solely on demographic information from the U.S. Census Bureau, with the terms “population, working or seeking employment” and “general workforce” to mean the general population of working age.

The Court found that the defendant employer’s failure to calculate its hiring goals based on the number of qualified women and minorities in the workforce (instead of based on the general working age population) doomed the AAP. When an AAP “ simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly [can] be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to ‘achievement of a particular percentage of minority employment or membership ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants.” quoting Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), 480 U.S. 616, 636.

Unlike the Johnson AAP, the Court noted that the defendant employer’s AAP “failed to acknowledge that imbalance cannot, in itself, justify taking race or sex into consideration. Also unlike the plan in Johnson, Dayton’s Plan calculates imbalances based solely upon the respective proportion of African-Americans and women in the local labor force (37% and 46%, respectively), not upon the proportion of skilled workers.” None of the hiring goals were based on an analysis of the local workforce with the requisite skills or education. “As structured, Dayton’s Plan dictates “mere blind hiring by the numbers.”

The Court agreed that use of an AAP by itself does not constitute unlawful discrimination. However, “the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination unless the plan is valid. * * * Furthermore, even when a defendant denies having acted pursuant to its affirmative action plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted pursuant to its stated plan.” quoting Bass v.Bd of County Commrs, Orange County, Fla. (11th Cir, 2001), 256 F.3d 1095, 1111. In fact, “an affirmative action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated plan.” Id. Even in a reverse discrimination case based on the indirect method of proof, the AAP could be used to show background circumstances supporting conditions for reverse discrimination.

In reversing the employer’s directed verdict, the Court was also influenced by a number of factors, including:

• Lemmie’s failure to follow traditional hiring procedures. In particular, there had been evidence that the City Manager typically accepted the hiring recommendations of subordinates, but she rejected two recommendations to hire the Plaintiff;


• The employer’s inconsistency in implementation of the hiring process, such as appointment of other promotional candidates (in other positions) without competition, while the division manager position was subjected to several competitions and searches;


• Lemmie’s failure to articulate reasons to her subordinates (before the litigation commenced) for refusing to promote the Plaintiff. “While Lemmie may have felt that she was not obligated to explain her actions to anyone, the absence of an explanation at a time when it might logically have been expected is suspicious.”


• Lemmie’s membership and leadership position in an organization designed to increase the number of African-Americans as public service executives. Lemmie was an officer of a professional association that professed a “commitment to strengthen the position of blacks within the field of public administration, to increase the number of blacks appointed to executive positions of public service organizations, and to groom and prepare young aspiring administrators for senior public management in the years ahead.” Most of the local members worked for the City and the City paid the dues for a number of the member employees. Lemmie eventually offered the job to a female African-American applicant recommended to Lemmie through this organization even though no other candidate was sought at that time.


• The employer’s financial support of employee membership in NFBPA;


• During Lemmie’s tenure, only African-American and females were sent to executive and leadership training at the Executive Leadership Institute and the Leadership America Institute.


• There was also evidence that the successful candidate was not as qualified for the position as the Plaintiff.


• Lemmie cited factors for her decision which were not included on (and had been actually crossed off ) the interview rating sheets and disclaimed factors (such as union relations) which were included on the rating sheet (and on which only the Plaintiff had significant experience).
  
  
  Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/2/2007/2007-ohio-5757.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

When Failing to Preserve Employment Records Constitutes a Separate Claim for Spoilation of Evidence.

Last month, the Ohio Court of Appeals ruled that an employer’s failure to preserve evidence of its hiring/promotion process (including rating sheets, job applications, interview notes, etc.) which began less than two years before the initiation of litigation could give the disappointed plaintiff a separate claim for spoliation of evidence. This was particularly true when the employer was a government entity required by the Ohio Public Records laws to preserve such records for a longer period than required of private sector employers. Mitchell v. Lemmie, 2007-Ohio-5757 (10/24/07).

In that case, the plaintiff was, without explanation, denied a promotion to divisional manager even though he had the recommendations of his superiors in mid-1999 and even after he was the only remaining candidate from the short list recommended to the city manager in late 1999. After he was passed over twice for the promotion, he ultimately retired and then filed suit in December 2001 within two years of the denial of the promotion after an African-American female with arguably lesser qualifications was hired for the position in a non-competitive process. The original lawsuit was voluntarily dismissed by the plaintiff in early 2004 and then refiled in April 2004 with discovery requests. In these and later discovery requests, he sought information about all of the candidates which had applied and been considered for the position through four different searches to fill the position. He also sought information about the City Manager’s computer outlook calendar. However, the employer denied that these records had been preserved.

The plaintiff pursued many motions to compel discovery and pointed out that the employer had maintained the same sort of records for another job search conducted during the same time period, but claimed that it could not find the relevant documentation involving the position he had sought. The employer contended that it had produced all relevant documentation, but then produced new evidence only a week before trial that contradicted prior deposition testimony by a witness. When the employer failed to produce the requested documents, the plaintiff moved to amend his complaint to add a claim for spoliation of evidence (since the missing evidence could support his claims of discrimination).

Ohio recognizes a claim for spoliation of evidence, which is based on statutory and common laws prohibiting willful or negligent destruction of evidence. The employer argued that it had no duty to maintain any of the requested documents after filling the divisional manager position. However, a duty arises once litigation becomes probable or has actually been initiated. (In addition, various employment statutes require the preservation of these types of records for one to two years after they are created and/or the position is filled). Fatal for the defendant employer’s explanation is the fact that its explanation was not consistent with Ohio’s public records laws.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

A Sexual Harassment Policy Is Inadequate If Teenaged Employees Can’t Understand It.

Earlier this month, the Seventh Circuit Court of Appeals in Chicago rejected an employer's affirmative defense in a sexual harassment case because its sexual harassment reporting procedures could not be reasonably followed by its teen-aged workforce. In that case, a 30-something restaurant manager sexually harassed a 16-year old part-time employee. EEOC v. V & J Foods, Inc., No. 07-1009 (11/7/07). He allegedly fired her temporarily for missing a shift as a pretext for her refusing his repeated advances. She complained to the shift and assistant managers, but they would not provide her with information about how to complain to corporate headquarters, did not alert headquarters to the problem and did not control their manager. She was then fired her again after her mother complained to the assistant managers about the harassment. She filed a Charge with the EEOC, which instituted litigation on her behalf.

The district court granted summary judgment for the employer, but the Court of Appeals reversed. First, the Court noted that an employer is strictly liable for tangible employment actions (i.e., the terminations of the teenager’s employment). Second, the Court found that the employer was not entitled to an affirmative defense for the harassment because its complaint procedure was completely inadequate. Among other things, the policy did not provide for bypassing the harassing restaurant manager, or the telephone number for the corporate headquarters (or anyone responsible for accepting harassment complaints). Moreover the district manager was not identified (or how to reach him) and the shift and assistant managers did not respond to the teenager’s complaints appropriately. Importantly, the Court held that a complaint procedure would not be reasonable unless it could be understood by a reasonable teenager since the employer routinely employed many teenagers. A one-size fits all policy will not support an affirmative defense if individuals are employed who would likely not understand it (because of language or experience, etc.). In that case, a teenager would not know how to use the sexual harassment complaint procedure because the information was not readily accessible in the employee handbook or other location.

Finally, the Court held that the plaintiff could pursue a claim for retaliation even though she was fired based on her mother’s complaint (instead of her own). The mother was clearly acting in her daughter’s interests and had legal standing to do so.

Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/7th/071009p.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

New I-9 Form Must Now Be Used By All Employers.

The U.S. Citizenship and Immigration Services office (CIS) of the Department of Homeland Security (DHS) has announced revisions to the I-9 form which all employers must complete within three days after hiring any new employee. The new form removes certain forms of acceptable identification and adds others in compliance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The CIS instructs that all employers begin using the new form for all new employees hired after November 7, 2007, but will not penalize non-conforming employers (who continue to use the old I-9 form) until 30 days after a notice has been published in the Federal Registrar.

According the CIS, “five documents have been removed from List A of the List of Acceptable Documents:
o Certificate of U.S. Citizenship (Form N-560 or N-561)
o Certificate of Naturalization (Form N-550 or N-570)
o Alien Registration Receipt Card (I-151)
o Unexpired Reentry Permit (Form I-327)
o Unexpired Refugee Travel Document (Form I-571).”

The CIS also reports that an additional “document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766)” According to the CIS, “[t]he revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.”

In addition, the CIS reports that “[a]ll the Employment Authorization Documents with photographs that are in circulation are now included as one item on List A: I-688, I-688A, I-688B, I-766.”

Finally, the CIS explains that “[i]nstructions regarding Section 1 of Form I-9 now indicate that the employee is not obliged to provide the Social Security Number in Section 1 of Form I-9, unless he or she is employed by an employer who participates in E-Verify. The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.”

A copy of the new I-9 form is available to be printed and copied from the CIS website at http://www.uscis.gov/files/form/I-9.pdf. The full CIS press release can be accessed at http://www.uscis.gov/files/pressrelease/FormI9FS110707.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Annual Holiday Party Hangover Checklist

One of the most memorable scenes in Dickens’ A Christmas Carol is the joy Scrooge received from his first employer’s annual holiday party. “The happiness he gave to his clerks, his apprentices and everybody who knew him; it was as great as if it had cost a fortune.” Indeed, an employer’s annual holiday party is one of the most important morale boosting events of the year no matter the size of the company.

Unfortunately, in this litigious and sometimes reckless society, holiday parties also can create unintended hangovers for management and innocent bystanders if proper care is not taken to ensure that all guests enjoy themselves safely both during and after the party. A mix of holiday spirits from both the season and a bottle of vodka has the potential to create a painfully “memorable” evening that could be litigated for years:

• Someone slips and falls at the mandatory holiday party where annual awards and bonuses are distributed.


• An intoxicated supervisor attempts to show his “appreciation” to a subordinate through both verbal and physical “affection” on the dance floor.

An intoxicated employee drives home from the office party and injures the occupants of another vehicle.

Numerous Ohio courts have refused to impose liability upon employers – or other social hosts -- for injuries caused by intoxicated employees returning home from a party or other social outing, including golf outings, company picnics or other voluntary social function. The driver, and not the host, is primarily responsible for his or her own conduct. At best, liability would be imposed on a social host employer “only where the host knew that the person to whom the liquor was furnished would consume it and either was, or would become, intoxicated and would probably act in such a manner while intoxicated as to create an unreasonable risk of harm to third persons.” Baird v. Roach, Inc. (1983), 11 Ohio App.3d 16. However, those cases have frequently rested on their individual facts, where the defendant employers took extraordinary steps to keep employees from driving home drunk after voluntarily attending an office party or were unaware that intoxicated employees were driving home.

In order to avoid turning your festive event into the subject of a lawsuit, you should consider incorporating the following suggestions into your office celebration:

1. Remove any argument that attending the party is a duty of an employee.
• Make attendance at the party completely voluntary.
• Hold the party after regular working hours and maybe even off the premises.
• Do not conduct any business (like handing out bonuses or awards) at the party.
• Do not assign any employees to set up or clean up afterwards.  If you do, be sure that non-exempt employees are paid for their time working at the party.
2. Take steps to discourage boorish behavior by possible harassers:
• Remind employees before the party that the sexual harassment policy applies during the party and to any gag gifts that are exchanged.
• Invite spouses and significant others and maybe even children to the event. This will be appreciated by the spouses and has the added effect of deterring most boorish behavior towards staff by potential harassers.
3.  Discourage the over-consumption of alcohol:
• Reconsider providing an open bar with limitless alcohol. Consider a cash bar, a limited voucher system, a two-drink limit or closing the open bar earlier in the evening.
• Ensure that non-alcoholic beverages are available.
• Hire a caterer to serve the alcohol (instead of self-serve) and instruct the bartenders to refuse service to anyone who is visibly intoxicated. 
• Ensure that food is served at the party – particularly foods rich in carbohydrates and protein. Avoid salty or greasy food that will make guests more thirsty.
• Provide employees with tips for responsible drinking before the party. This could include reminders about how much alcohol it takes over an hour before an employee is too drunk to drive, to drink a glass of water between each alcoholic beverage, and to eat enough food both before and during the party.
• Consider holding the party on a weekday, instead of a weekend.
4.  Discourage anyone from driving under the influence:
• Ensure that alternative transportation (such as a taxi) is available for intoxicated guests. Providing free vouchers for cabs is the sign of a classy and caring employer.
• Assign someone (who is completely sober) to keep an eye out for visibly intoxicated guests leaving the party with car keys in hand.
• Encourage all employees to keep an eye out for intoxicated co-workers who may not realize that they have had too much to drink.
5. Be sensitive to the varying religious beliefs of your employees.
• Keep it as a "holiday" party and be sensitive to religious-symbols and decorations.
• Remember that the Sabbath for some religions begins on Friday evenings.  Holding the party then could inadvertently exclude some employees.
• Don't prohibit employees from recognizing a religious holiday by name or in popular songs.

Review the company’s insurance policy to determine coverage for furnishing alcohol both on and off the company’s “insured premises.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

When Misconduct Does Not Pay: NLRB Denies Reinstatement and Back Pay to Discharged Employees Despite Employer's ULP

As most union employers are aware, they must advise and possibly negotiate with the incumbent union before monitoring union employees in the workplace (through video surveillance or otherwise). See .e.g., Colgate-Palmolive, 323 N.L.R.B. No. 82 (1997) (where use of surveillance cameras was found to be a mandatory subject of bargaining). However, the NLRB recently determined that employees discharged or disciplined for workplace misconduct uncovered by improper video surveillance are not entitled to back pay or reinstatement. Anheuser-Busch, Inc., 351 NLRB No. 40 (9/29/07).

In that case, the employer installed hidden surveillance video cameras without bargaining with the incumbent union. Through use of the cameras, the employer learned that certain employees engaged in misconduct, and the employer disciplined or discharged sixteen of them. Even though the employer committed an unfair labor practice by failing to bargain over a mandatory subject (i.e., surveillance cameras) and was ordered to cease and desist and to bargain with the union, the majority of the NLRB determined that the disciplined and discharged employees should not benefit from their misconduct through a windfall award of reinstatement and backpay. In denying a make-whole remedy, the NLRB overruled prior NLRB cases as inconsistent with its new holding. The NLRB noted that it had similarly denied backpay and reinstatement to employees discharged for misconduct following a violation of their Weingarten rights.

Insomniacs can read the NLRB’s full decision at http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35140.htm&size=170.

Employers: Beware of Fake “Phishing” Email From EEOC

On October 19, 2007, the EEOC announced that unknown persons were circulating among employers a "phishing" e-mail which purports to be from the EEOC regarding a pending harassment complaint. “The bogus e-mail contains a Trojan Horse Virus that is likely to harm a recipient's computer if the user clicks on the referenced web link and/or downloads the attached file.”

The EEOC contends that the “phony e-mail to employers -- being circulated under the subject "Harassment Complaint Update For"-- contains links where the respondent can allegedly access details of a fake discrimination claim. The EEOC has reported the issue to appropriate authorities. “

The EEOC's routine practice “is to notify an employer of the filing of a charge of employment discrimination using the U.S. Postal System. Because of security concerns, the EEOC does not notify employers of the filing of a charge of discrimination via e-mail. Consequently, if a company receives an e-mail notification which purports to advise the respondent of the filing of a charge of employment discrimination with the EEOC, the federal agency urges users to delete it immediately."

The EEOC also explained that the “contents of the phishing e-mail include an EEOC logo under the subject line and contain purported language from the EEOC under a subject heading, "Employer Liability for Harassment." Excerpts of the phishing e-mail are highlighted below:

FROM: Equal Employment Opportunity Commission

SUBJECT: "Harassment Complaint Update For"

This is an automated email that confirms the registration of harassment complaint #number...this harassment complaint can lead to law enforcement action. You can download and print a copy of this complaint to keep for your personal records here...Our staff will keep you updated regarding the status of our investigation...To check the status of your complaint access:"

A copy of the EEOC’s full press release can be accessed at http://www.eeoc.gov/press/10-19-07.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.