Thanks to the 582 of you who voted on last week’s question. Here are the results . . .

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head, (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be?

a. The EEOC (8%)
b. A lawyer who specializes in the ADA (57%)
c. The Job Accommodation Network (17%)
d. The employee’s physician (12%)
e. The employee’s spouse to see if he’s making all this up (7%)

The correct answer is “c”: the Job Accommodation Network.

The Job Accommodation Network (JAN) is a service dedicated to assisting employers who face difficult accommodation decisions. To contact JAN, click here, on the link (jan.wvu.edu) under the “Other Resources” section of the Blawg or call 800-526-7234.

I’ve always found JAN to be extremely helpful. In fact, on at least one occasion the EEOC has stated publicly that it is more likely to believe that an employer acted in good faith if it consulted with JAN during the accommodation process.

The best part? JAN is FREE. In our experience, $0 an hour is less than what most law firms charge.

I’m not surprised that JAN was selected as the correct answer by only 17% of our respondents. I’ve done dozens of seminars and very few people have ever given JAN as the correct answer to this question. JAN just may be the best-kept secret in the employment law universe.

Our viewers are now batting a respectable .537 (22 right, 19 wrong) on our weekly questions.

The next one will be coming your way soon. Thanks for your participation!

One of the best ways to stay out of court is to (1) keep tabs on what sorts of things the EEOC is suing employers for and then (2) don’t do those things.

The EEOC announced a whopping 38 new lawsuits this past week. If you’d like to spend more time with lawyers, judges and juries, just do any of the following . . .

Sexual Harassment and Gender Discrimination

Almost a third of the new cases fall into this category. Here’s what not to do:

• ignore repeated complaints about “higher-ups” who use “sexual epithets” and engage in “threatening physical and verbal sexual conduct” (here);
• apply anti-nepotism policies inconsistently to male and female employees (here);
• fail to have a clearly articulated harassment complaint procedure and fail to take steps to stop a manager from using his position to harass several female employees (here);
• punish an employee who complains of sex harassment by cutting her hours, taking away her company vehicle and then firing her without explanation (here);
• fail to take adequate steps to address a “campaign of sexual comments, threats and unwanted touching” by managers against female teenage employees (here); and
• fail to stop repeated sex-based harassment such as unwelcome touching, requests for sexual favors, physical intimidation, name-calling, anonymous notes and/or retaliation (here, here, here, here, here, here, here and here).

Pregnancy Discrimination

Please don’t:

• make sexist comments like ”a pregnant woman should be at home,” fire a pregnant employee the day she turns in her maternity leave paperwork and then fire her husband three weeks later for “associating” with her (here);
• remove a pregnant employee from a position for safety/risk reasons without an in-depth analysis (here);
• refuse to accommodate a pregnant employee’s request for additional leave time due to doctor-ordered bed rest (here); and
• fail to rehire an employee after she resigned due to a pregnancy-related medical condition (here).

Disability Discrimination

What not to do in this area . . .

• refuse to provide reasonable accommodations to disabled applicants during pre-employment training (especially if you’re a disability services company) (here);
• refuse to hire someone solely because of a back ailment (here) or learning disability (here);
• refuse to discuss a deaf employee’s accommodation requests, “pick on” the employee, force the employee to “work in the back of the store away from the public,” and then “eliminate her work hours entirely” (here); and
• discharge an employee who was involuntarily hospitalized (here).

Race and National Origin Discrimination

Don’t:

• tell a minority applicant during the hiring process that she is “obviously qualified,” then refuse to hire her because she is “unqualified” and then hire a less qualified non-minority applicant (here);
• refuse to hire non-Hispanic applicants for housekeeping positions (here);
• refuse to hire an applicant solely because they don’t speak Spanish when it’s not required for the job (here);
• screen out applicants on a nationwide basis based on credit history and criminal charges/convictions without considering potential job-relatedness (here);
• systematically favor employees of one national origin over another (here); and
• fail to take adequate steps to address a racially hostile work environment, including racial slurs, graffiti and nooses (here, here, here and here).

Age Discrimination

Somewhat surprisingly, there was only one new age-discrimination suit.

Don’t:

• make hiring decisions based on age and then fail to retain employment records related to the hires (here).

Retaliation

Many of the above cases also included retaliation claims. Here are some “what not to do’s” from other new cases that focus almost exclusively on retaliation.

Don’t:

• fire an employee for refusing to drop a discrimination complaint against another employer with whom management has a “close relationship” (here);
• terminate an employee for refusing to drop a restraining order against a co-worker (here); and
• retaliate against employees who complain of discrimination (here, here and here).

All of the above are merely allegations made by the EEOC and are not established facts at this point. Stay tuned to see how these cases play out.

A recent survey by the Pew Research Center sought to answer that question. Here’s what it asked . . .

Just your impression, In the United States today, is there a lot of discrimination against __________ or not?

The top vote-getters? Gays and lesbians, followed by Muslims and then Hispanics.

Here are the full results (% of “yes” votes):

• Gays and lesbians: 64%
• Muslims: 58%
• Hispanics: 52%
• Blacks: 49%
• Women: 37%
• Jews: 35%
• Evangelical Christians: 27%
• Atheists: 26%
• Mormons: 24%

(Special thanks to Jon Hyman of Kohrman, Jackson & Krantz for bringing this to my attention)

True to promises made by the Obama Administration, employers can expect to see much more aggressive enforcement of federal anti-discrimination laws in the very near future.

Here’s the latest . . .

New Wage and Hour Compliance Officers

Labor Secretary Hilda Solis has publicly emphasized increased enforcement as a priority, focusing primarily on the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division. The Wage and Hour Division alone plans to hire more than 200 new compliance officers to enforce the Fair Labor Standards Act (FLSA) and other statutes.

Agency Budget Increases

Budgets for the Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) are on the rise for the first time in years, with significant increases planned for 2010. The EEOC will undoubtedly use those resources to pursue its renewed emphasis on systemic (i.e., class-wide) discrimination.

Department of Justice

U.S. Attorney General Eric Holder announced a few days ago that the Department of Justice (DOJ) will increase the budget for the Civil Rights Division by $22 million and hire more than 50 civil rights attorneys to enforce various federal laws, including the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 and the Immigration Reform and Control Act (IRCA). The Division has already started filing far more “friend of the court” briefs in private discrimination matters.

Other Enforcement Activities

Other agencies are upping the enforcement ante as well. Immigration Customs and Enforcement (ICE) recently announced that it is issuing notices of investigation (NOIs) to 652 employers nationwide. OFCCP announced that it will audit recipients of federal stimulus money. OSHA announced a new National Emphasis Program (NEP), targeting companies whose reported injury history is significantly less than the norm.

What Does All This Mean for Employers?

It’s pretty simple: follow the law. Employers that don’t are likely to face tougher audits and enforcement than has been seen in decades.

A new term sweeping through the HR world has employment lawyers all a-flutter. The term? ”Mancession.”

It appears to have started with this New York Times article and picked up momentum yesterday after Business Week ran a piece entitled Women: Nearing a Majority at Work?

What exactly is the “Mancession”? Basically, the recession appears to be hitting men harder than women. As a result, for the first time in U.S. history women very nearly represent the majority of the workforce. Based on nonfarm payroll data released last Friday, here are the latest numbers . . .

MEN: 50.17%
WOMEN: 49.83%

That’s the closest ratio on record.

What are the potential HR and employment law implications? Plenty, if you believe some of the Twitter-y and blogg-ish chatter out there:

• Some appear to assert that this stat — combined with the Supreme Court’s recent firefighter decision — will fuel a plethora of “reverse discrimination” suits that could call into question the very purpose of Title VII and similar anti-discrimination laws.
• Others assert that focusing on the overall shift ignores the gender wage gap and the disproportionately low representation of women in managerial roles.

It’s a very interesting debate. Stay tuned to see how this plays out.

Today’s Wall Street Journal features a rather interesting article on employer reactions to Monday’s Supreme Court’s ruling. The authors were kind enough to quote me a bit.

The viewpoints were decidedly mixed. Some believe the decision will encourage employers to use more tests in the hiring process. Others (like me) believe it will have the opposite effect and could lead to more litigation given the lack of a bright-line standard.

Click here for my summary of the case.

Previously here on the Blawg, we reported on a case in which a black employee was awarded $120,000 after he proved that his firing for setting off a firecracker in the workplace was discriminatory.  Yesterday, the U.S. Court of Appeals for the Sixth Circuit upheld the award.

The case offers several valuable lessons for employers.  Here are the highlights.

The Facts

Ronald Madden was fired in 2006 by the Chattanooga Public Works Department for setting off a firecracker at work.  Company representatives testified that they were unaware of any similar incidents at the time of Madden’s firing and that they would have taken the same action against any other employee who had done the same thing.

However, Madden and several of his co-workers provided evidence that white employees had set off firecrackers at least twice in the past without incurring any discipline.  In one incident, the employee — who had the same supervisor as Madden — set off firecrackers at work less than a year before Madden’s firing.  Unlike Madden, the only response to that employee’s conduct was an informal admonition that he should “knock off the horseplay.”  There was also evidence that the supervisor himself had set off firecrackers at work and was never disciplined.

In a separate incident, a white employee threw a firecracker into a city truck carrying black employees, causing some of the employees to jump out of the truck while it was still moving.  Again, no discipline was issued and the situation was treated as “humorous and not one warranting discipline.”

The Trial

Despite the employer’s protestations that it was unaware of the prior incidents, the district court found that setting off firecrackers at work was “not uncommon” and that “there was no effort to conceal their use.”  Based on the employer’s disparate treatment of Madden and its willful ignorance of prior incidents, the court found the city liable for race discrimination under Title VII and awarded Madden $52,765 in front pay, $36,935 in back pay and $30,300 for emotional distress.

The Appeal

The employer appealed on the basis that the evidence supported a finding that Madden’s firing was indeed nondiscriminatory.  Among other things, the city argued that all employees were treated equally and that Madden’s conduct posed a greater safety risk than the conduct of the non-terminated employees.  In addition, the city argued that Madden failed to mitigate his damages by rejecting its “unconditional” offer of reinstatement.

The appeals court rejected the employer’s arguments.  First, it found that the reasons offered for Madden’s firing were insufficient to “motivate” the termination.  It pointed to the wealth of evidence that “white employees were not fired — or disciplined whatsoever — despite engaging in substantially identical conduct.” 

As for the “greater safety risk” argument, the court found “substantial evidence that the other incidents involved comparable or even more serious misconduct.”  It pointed particularly to the incident in which the white employee threw a firecracker into the moving vehicle carrying black employees.

The court also found that “discriminatory animus” motivated the white supervisor to turn in Madden but not white employees who engaged in similar conduct.  “By relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of . . . prejudice,’” the court stated.

Last, the court rejected the “failure to mitigate” argument.  The court found that the city’s offer of reinstatement was not truly “unconditional” because it required Madden to dismiss his discrimination claims.

The Lessons

This case graphically illustrates what can happen if an employer applies its discipline policies inconsistently.  Prior to any termination, it’s absolutely critical to conduct a good-faith investigation to ensure that (1) you have all the relevant facts, (2) the penalty fits the “crime” and (3) the decision is consistent with past practice.  Witnesses should be carefully examined to ferret out any potentially discriminatory motives.  It’s never a good idea to go to trial relying on the testimony of a potentially prejudiced witness.

Also, employers should think twice about offering reinstatement conditioned on dropping claims.  Such offers may be found “conditional” and thus insufficient to cut off the employee’s damages.

Tools and Tips

We’re here to help.  For our handy investigation checklist, click here.  For our termination tools, click here.

EEOC claims hit a record high 95,402 in fiscal year 2008, according to the latest EEOC Performance and Accountability Report.  That number was up a whopping 15.2% compared to last year.

Those figures are consistent with other data published on the Blawg showing that employment law claims and verdicts go up in a downturn.

The message is simple:  Now is the time to make sure you and your managers know and follow the law.  Failure to do so could be perilous to your company’s health.

Click here and here for a slew of helpful tips on managing in a downturn.  Hope you find ‘em helpful.

An applicant who was denied a job after disclosing that he was in the process of becoming a woman won a discrimination lawsuit against the Library of Congress.

The Facts

David Schroer served in the U.S. Army for twenty-five years, including a stint as a Special Forces Commander leading a team that tracked international terrorists.  After retiring as a colonel in 2004, Schroer applied for a terrorism and international crime research position at the Library of Congress.

According to Schroer’s attorney, Schroer received the highest interview score of all the candidates who applied for the position.  He was offered the job in December 2004.

Before starting the job, Schroer had lunch with his new boss, Charlotte Preece.  During lunch, Schroer disclosed that he was transitioning to become a woman named Diane.  Schroer testified that after the disclosure Preece said, “Well, you’ve given me a lot to think about.  I’ll be in touch.”

Preece then put a halt to the processing of Schroer’s employment documentation.  She then allegedly expressed concern about whether Schroer’s “transitioning” would be a distraction and whether it would negatively affect his/her security clearance, contacts within the Army and intelligence community and ability to credibly represent the Library before Congress.

The next day, Preece called Schroer to inform him that the Library was withdrawing the job offer.  Preece allegedly told Schroer that “after a long and sleepless night, based on our conversation yesterday, I’ve determined that you are not a good fit, not what we want.”  Preece then filled the position with a male applicant who had a lower interview score than Schroer.

Schroer sued, claiming gender discrimination in violation of Title VII.

The Trial

In defending the Library, the Justice Department argued that Title VII neither protects transsexuals nor prohibits gender identity discrimination.  They argued that the Library had legitimate nondiscriminatory reasons for revoking the job offer, including the security clearance and distraction concerns cited by Preece.

Schroer’s attorneys argued that the reasons offered by the Library were pretextual and that it discriminated against Schroer based on gender stereotypes in violation of Title VII.

While acknowledging that several federal courts have held that Title VII does not protect transgender discrimination, U.S. District Judge James Robertson sided with Schroer.  He found ”compelling evidence” that the Library’s hiring decision was “infected by sex stereotypes.”

“The evidence establishes that the Library was enthusiastic about hiring David Schroer — until she disclosed her transsexuality,” the judge stated.  “The Library revoked the offer when it learned that a man named David intended to become legally, culturally and physically, a woman named Diane.  This was discrimination ‘because of . . . sex.’”

An upcoming hearing will determine Schroer’s remedies.  For the full text of the court’s decision, click here.  For a video interview with Schroer, click here.

The Lesson

The lesson here is simple.  While courts may take different approaches to transgender issues, the safest course is to evaluate ALL candidates based on purely nondiscriminatory job-related criteria.

Several thousand TV writers inked a $4.5 million settlement with talent agency International Creative Management, Inc. (ICM), resolving the first of 23 pending age discrimination suits against various talent agencies, TV networks and studios.

The lawsuits were filed in 2000 and include cases pending in California state court against media giants ABC, CBS, NBC, Fox, Disney, Columbia, Warner Brothers and talent agencies ICM, Creative Artists, William Morris and others.  The writers allege that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failure to hire them.

In addition to the payment, ICM agreed to implement a variety of institutional changes, including working with an independent task force to scrutinize its policies and procedures and participating in a program that will seek to promote the top 25% of older writers based on script evaluations conducted by a panel of experts.

The plaintiffs’ law firm says it is in “serious settlement negotiations” with the remaining defendants.

The Lessons

As discussed previously here on the Blawg, age discrimination cases are #1 in terms of verdict size.  Those numbers will undoubtedly continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy.  The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees.  Those cases usually don’t work out too well for employers.  Click here for a real-life example.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact.  Older employees can be a valuable resource and often have tremendous skills and experience.  Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.