Here on the Blawg, we summarized four brand new employment law decisions issued yesterday by the U.S. Supreme Court.  Reactions from the business community have been mixed, ranging from yawns to dire predictions of litigation nightmares. 

Click here for a nice summary of the post-ruling reactions from CNN.  It includes a quote from the U.S. Chamber of Commerce that the cases “may lack sex appeal, but they have a huge impact on the national economy.”  Most of the other reactions have been more measured, but many are noting that the Court appears to be moving away from its former (supposed) pro-business lean.

Proving that anyone can sue for anything (and that justice occasionally gets done), yesterday a federal court refused to overturn the license termination of a pilot who admitted smoking crack cocaine.

The Facts

According to court documents . . .

• Pilot Charles Gabbard admittedly smoked crack cocaine sometime between 5:00 p.m. and 7:00 p.m. on February 15, 2007.
• On February 16, Gabbard submitted to a random drug test. 
• On February 17, he piloted a chartered jet.
• On February 21, Gabbard’s test results came back, showing a cocaine metabolite level seven times higher than the regulatory limit.
• Cocaine takes 24-48 hours to clear the system, according to the drug test administrator.

In April 2007, the Federal Aviation Agency (FAA) terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

After an evidentiary hearing, an Administrative Law Judge upheld the FAA’s decision.  The National Transportation Safety Board also affirmed the decision.

Despite all the above, Gabbard filed a lawsuit, claiming there was inadequate evidence for his termination.

The Court’s Decision

Not too surprisingly, the law doesn’t allow pilots to fly the friendly skies while on drugs.  What is surprising is that Gabbard was able to get his case all the way to the second highest federal court in the land.

Basically, Gabbard’s defense appeared to be:  “Hey, you can’t terminate me.  Sure, I smoked crack and massively failed a drug test but you can’t prove with 100% certainty that I was coked up while I was actually flying that big plane in the sky with lots of people on it.”

After examining all the evidence, the court concluded that a “reasonable mind” could determine that Gabbard flew the plane with coke in his system.  It pointed to the ALJ’s conclusion that Gabbard lacked credibility and that his admitted crack smoking may have taken place closer to takeoff.  Even without that, however, the uncontested evidence showed that Gabbard piloted the jet (at most) 42 to 44 hours after smoking crack — within the 24-48 hour window it takes for coke to clear the system.

Gabbard tried a few other creative arguments, including that (1) he inadvertently smoked a cigarette that — unbeknownst to him — was laced with crack, (2)  the coke may have gotten into his system due to plastic surgery or (3) perhaps he inhaled crack smoke that just happened to waft by his head at some point.

The court rejected each of those arguments, finding that regardless of how the coke got into his system, Gabbard immediately knew he was affected.  Rather than inform his employer about the “accidental” crack ingestion, he instead jumped behind the controls of the plane and took off.

Gabbard’s final argument was that his lawyer was so bad that the decision below should be thrown out.  The court rejected that argument as well, noting that there is no constitutional right to effective counsel in a civil case.

Click here to read the entire decision.

Previously here on the Blawg, we reported on a slew of discrimination lawsuits filed against Fresno State University.  The latest one, filed by former Fresno State women’s basketball coach Stacy Johnson-Klein, just settled for $9 million.

Johnson-Klein alleged gender discrimination and sexual harassment and was awarded $19.1 million in a jury verdict in December that was later reduced by the court to $6.6 million plus $2.5 million in attorneys’ fees and $700,000 in court costs.  The college appealed and the parties settled on Wednesday.

It’s been a tough year on the lawsuit front for Fresno State.  Last October, the college settled a gender discrimination claim filed by former associate athletic director Diane Milutinovich for $3.5 million.  And last July, a jury awarded former women’s volleyball coach Indy Vivas $4.5 million plus attorneys’ fees.

It was a day chock-full of employment law for the Supreme Court, as it issued four decisions impacting employers.  Here are the highlights.

In MetLife v. Glenn, the Supremes ruled that the administrator of an ERISA plan has a conflict of interest if it performs the dual role of evaluating claims and paying them.  What does this mean for employers?  If your administrator performs both roles, there is now a much greater risk of having benefit determinations overturned.

In Meacham v. Knolls Atomic Power Laboratory, the Court ruled that it is the employer’s burden in an ADEA disparate impact suit to prove that the employment decision was made on “reasonable factors other than age” (RFOA).  Previously, it was unclear whether the employer or employee bore the RFOA burden of proof.  The Court also rejected a “business necessity” defense under the ADEA.  What does this mean for employers?  Employers now have a potentially greater uphill battle in disproving disparate impact age discrimination claims.

In Kentucky Retirement Systems v. EEOC, the Court ruled that a benefit plan’s use of age as a factor in distributing retirement benefits to disabled employees does not constitute a prima facie case of age discrimination.  What does this mean for employers?  Even with this ruling, employers should refrain from applying age as a factor arbitrarily or discriminatorily in pension decisions.

In Chamber of Commerce v. Brown, the Court ruled that federal labor law prohibits states from regulating an employer’s right to speak out about union organizing by its employees.  What does this mean for employers?  If you’re in a state (like California) that has such a law, it is now subject to challenge on federal preemption grounds.

Stay tuned for more.

(Source:  scotusblog.com)

The Kroger Co. has agreed to settle a class action race discrimination lawsuit for $16 million.

The lawsuit alleged that Kroger discriminated against African-American employees in Alabama, Georgia, Kentucky, Ohio, Tennessee and Texas in promotions and pay.  The plaintiffs also alleged that they were subjected to racial harassment.

In addition to the $16 million, a proposed consent decree would require Kroger to:

• establish minimum qualifications for all management positions 
• create a pay rate monitoring system that would allow store manager decisions to be overturned if unfair
• provide an annual report, including salary and promotion data, to the plaintiffs’ law firm

Kroger sent a letter to its employees that said:  “The plaintiffs who initiated this lawsuit seven years ago obviously felt strongly that the company was not treating them fairly or respectfully.  No one in our company should feel this way.”  The company added:  “We have taken steps over the past several years to build an inclusive culture that demonstrates our commitment to all associates.”  Among other things, the company said it has hired a chief diversity officer and created cultural councils to help promote inclusiveness.

As announced previously, we’re in the process of creating handy “cheat sheets” for each of the major employment laws.  The first one covers the basics of the Americans with Disabilities Act (ADA) and can be found here or under the Tools & Tips section to the left under “Cheat Sheets.”

The idea is to have a simple one-page summary of each law to help guide your employment decisions.  Print ‘em out and use ‘em as much as you’d like. 

We’d love your feedback on this new tool.  Feel free to shoot me an e-mail at blawg@manpower.com if you have any suggestions.

In today’s edition of You Be the Judge, we have a real-life case out of Ohio for your consideration.  We’ll give you the facts and then you decide who wins.  Once the votes are in, we’ll tell you how the court actually ruled.

The Facts

James Weimer worked on the assembly line at Honda’s Marysville, Ohio plant.  On February 21, 2006, a co-worker slammed a trunk lid on Weimer’s head.  He was taken to the emergency room where he was diagnosed with a concussion and a strained muscle.

Weimer was then seen by doctors under contract to Honda.  They ordered him to remain off work through March 15.  Weimer requested FMLA leave and the company approved his request.

However, after receiving a tip that Weimer might not be as injured as he claimed, Honda obtained video of him doing house and yard work.  The video showed Weimer adding a front porch to his home and lugging heavy materials around his yard while on leave.

When Weimer returned to work on March 16, the company questioned him.  He admitted doing the house and yard during his leave.  Honda fired him for dishonesty and FMLA abuse.

The Lawsuit

Weimer filed a lawsuit, claiming that the company fired him in retaliation for taking FMLA leave.  Honda denied the claims.  The parties conducted discovery and then each filed a motion for summary judgment in its favor.

Honda argued that it fired Weimer for lying and for abusing his leave.  The centerpiece of its case was the video, which Honda said was proof that Weimer (1) failed to tell his doctors that he had recovered enough to return to work and (2) stayed on leave longer than he was eligible.

Weimer countered that he told the doctors that he didn’t feel injured enough to take the entire recommended leave.  He argued that he was capable of returning to work earlier but was unable to do so because of the recommendations of Honda’s own doctors.

Earlier this week, a former employee filed a $225 million race and sex harassment lawsuit against NASCAR.

Mauricia Grant alleges in a federal complaint that she was subjected to “virulently racist harassment, a racially hostile work environment and insidious and pervasive race discrimination reflective of a former, uglier era in our nation’s history.”  As a result, she says she suffered “severe emotional distress, including depression, anxiety, nightmares, sleep disturbance, crying jabs and physical injury, including headaches and gastrointestinal distress.”

The Allegations

Grant’s allegations have caused quite a stir.  Among other things, she alleges that:

• male co-workers exposed their genitals to her and asked her to expose her breasts
• she was given racially insensitive nicknames by NASCAR officials, including “Nappy Headed Mo,” “Mohammed” and “Al Qaeda”
• NASCAR officials made lewd and lascivious comments and sent obscene e-mails, including one that said:  “I love all Yall mofos, i am that nigga, HAHAHA, Holla, PIMPALICIOUS”
• when she was late, her boss referred to her being on “colored people time”
• her boss asked if her exercise program included “an urban obstacle course with a flat-screen TV on your back”
• she was forced to work outside more than white employees because her bosses thought she couldn’t get sunburned because of her race
• while working in a dark garage, an official told her:  “keep smiling and pop your eyes out ’cause we can’t see you” 
• co-workers made threatening comments about the KKK
• when she ignored co-workers’ advances, she was accused of being gay
• she was fired for “poor work performance” despite two positive performance evaluations and no warnings other than that she refrain from “street” language

Grant says that when she complained about her treatment, she was ”subjected to heightened scrutiny, unwarranted disciplinary action, degrading treatment and continued harassment culminating in her unlawful termination, in direct retaliation for her complaints.”

Grant’s full complaint is here.

NASCAR’s Response

NASCAR Chairman Brian France called the allegations “inconsistent of our policies of our company and how we operate the sport” and says that Grant failed to follow internal complaint procedures.  Spokesperson Randy Poston added:  “NASCAR provides equal employment to job candidates and employees without regard to race, religion, creed, age, gender, or any other characteristic protected by law.  Personnel decisions are made based on factors such as performance and adherence to corporate policy.”

One defendant, former NASCAR official Mike Wilford, took his defense directly to the media.  He reportedly told the Associated Press that Grant “twisted” the facts, participated in lewd behavior herself and never complained.

In the lawsuit, Grant alleged that Wilford offered her diamonds and rubies if she would sleep with him.  Wilford says it was a “joke” and that Grant “used to go around telling everyone she wanted to marry a rich man and be a kept woman.”  Responded Grant’s attorney:  “Here’s a married guy with kids who tried to give jewelry to my client to get her to sleep with him. . . . This guy doesn’t want me getting his deposition and looking into his background to find out he’s lying.”

Stay tuned for more.

(Sources:  Associated Press; USA Today; Sporting News)

A federal court rejected a female receptionist’s claim that her firing for refusing to get coffee for her male supervisors was discriminatory.

In Klopfenstein v. National Sales Supply, U.S. District Judge Berle Schiller of Philadelphia ruled that “the act of getting coffee, by itself, is not a gender-specific act.”  He found that the receptionist failed to show that she was treated differently than any “similarly situated” male employees, given that (1) the company had only one receptionist and (2) the position had always been held by a woman.

In October 2006, “the controversy was really brewing,” according to the judge.  When Klopfenstein refused to serve one of her male supervisors coffee, he sent her an e-mail reprimand telling her that it was “not open to debate” that fetching coffee for him was one of her job duties.

Klopfenstein responded with her own e-mail, which said:  “I don’t have a problem getting coffee and/or water for our guests when they come in.  I don’t expect to serve and wait on you by making and serving you coffee every day . . . .  I will be more than happy to sit down and talk to you about this matter.”

She was fired nine minutes later.  A company vice president sent her an e-mail that said:  “I’m sorry it didn’t work out so please pack up your things.  We will send you your last check next week.”

Klopfenstein says she found the coffee demands “reinforced outdated gender stereotypes.”  Her lawyers contend that the judge failed to recognize that some tasks are “inherently more offensive to women.”

Klopfenstein plans to appeal.

Tomorrow, the Blawg’s ‘08 World Tour stops in lovely Raleigh, North Carolina where I will be speaking to group of HR professionals at a SHRM conference.  If they’re nice, I might even sing them a song.

If you’d like the Blawg Tour to consider swinging by your town, please email us at blawg@manpower.com.  We’ll do everything we can to accommodate your request.  Generally, we like to shoot for audiences of 100 or more but will make exceptions if you are (a) located in a warm climate, (b) near a golf course and (c) the date is in Winter (which in Wisconsin lasts approximately eleven-and-a-half months).