Your Employee Matters

DeRosa v. National Envelope Corporation (US Court of Appeals for the 2nd Circuit 08-2562-cv)

DeRosa became an employee of National Envelope in 1988 working as a customer service representative. In 2002, he suffered a traumatic injury to his right leg, which resulted in swelling, ulcers, and infections. DeRosa’s physician instructed him to limit the dependency on his right leg and, if possible, work from home. National Envelope agreed to this accommodation; however, in 2004 a new CEO decided to rescind this accommodation.

DeRosa, believing that his medical condition could not permit this change, informed his supervisor that he could not work on site. He was then terminated. DeRosa alleged that his employer encouraged him to file for Social Security Disability payments. There was a conflict on whether he had satisfactorily performed his job duties from home before his discharge. When DeRosa applied for SSDI, he stated that he “became unable to work because of my disabling condition and I am still disabled.� After DeRosa filed for ADA discrimination, the employer tried to argue that he was “stopped”� from doing so because of his statement on the SSDI application. The court disagreed.

This is a scary decision for employers. In this case, the plaintiff filed for Social Security Disability benefits and was then terminated because his employer believed that the employee’s claim that he was disabled from doing his job meant that there was no ADA concern. DeRosa obviously disagreed, claiming that there was an accommodation obligation in any event. The court pointed out that in a previous case, a sworn assertion that an SSDI applicant was “unable to work” could negate an element of an ADA claim unless the plaintiff offers a sufficient explanation for the apparent contradiction.

Lesson learned: A company always runs a risk when it does not engage in accommodation dialogue with any employee on leave for any reason at any time. I’m not sure why the CEO rescinded the work at home accommodation; my guess is that he felt this created a bad precedent or that DeRosa wasn’t performing well. If this is the case, the company should be able to defend itself against the ADA claim. This defense would be stronger if the company can document that it issued warnings and created performance plans for DeRosa before rescinding his accommodation.

The 11th Circuit court case out of Alabama, Harrison v. Benchmark Electronics, involved an employee who was tested before hiring and found to be positive for barbiturates. The court held that although testing for illegal drug use is not a medical inquiry, obtaining information that might have a medical explanation crosses the line. Citing an EEOC Enforcement Guidance regulation, the court stated: “If an applicant tests positive for illegal drug use … the employer may validate the test results by asking about lawful drug use or possible explanations for positive test results other than illegal use of drugs.” However, the regulations, together with the EEOC guidelines, prohibit asking disability-related questions.

So, although employers may conduct follow-up questions based on a positive drug test, this type of questioning has limits. In this case, whether or not the manager who chose not to hire the plaintiff knew about his epilepsy before he decided not to hire him was left for a jury to decide.

Lors v. The South Dakota Attorney General (US Court of Appeals for the 8th Circuit #09-1382)

In this typical case, the plaintiff claimed that his diabetes led to his termination, while the employer argued that the cause was his poor performance as a team leader. In an interesting twist, after the employee was demoted from being a team leader, he claimed that because the stress of his new position worsened his diabetic problem, a reasonable accommodation would be to promote him back to his team leader position. This is a novel approach, if I’ve ever heard one! The court, wisely, stated: “Even if, as Lors contends, he could better control his diabetes as a team leader, we have previously explained that the ADA is not an affirmative action statute.” The company was not required to employ him as a team leader simply because this would allow him to maintain better control of his diabetes.

Surveys are a great way to start a dialogue with employees. When creating your survey, consider asking these questions:

1. Why are we taking the survey in the first place? Have a specific goal in mind. Is it to get ideas? Improve the employee experience? Improve customer service? What?
2. Who will take the survey? All employees? A representative group? Begin by having a handful of employees take the final draft of the survey and then give you feedback on the questions. After making adjustments, these people can become spokespersons for the completed version.
3. What type of survey will you construct? Will it be anonymous? (We’re usually against this approach.) Will it be numerically based (1 = poor, 5 = excellent)? Or will it be open-ended?
4. What will you do with the results? Make sure employees know that, although you can’t act on each and every suggestion, you’ll consider and rank all input and provide feedback on which initiatives you will follow.
5. Who’s involved in solutions? Will you form separate committees? Will it be a top-down effort? Will you hire consultants?
6. How will you test, obtain feedback, and improve? What have you learned from this experience and what can you do better or differently next time? After these insights or strategies have been implemented, what will you ask about in your next survey?

A recent article in HR Magazine on the forensic investigation of a data thief identified a checklist of information sources that employers should consider when engaging in any type of investigation:

1. The employee’s computer, cell phones, and other company-provided devices
2. Parking garage access records
3. Building surveillance footage
4. Office access logs
5. Office telephone logs
6. Cellular telephone bills
7. E-mails
8. SIM and memory cards
9. Any documents or witnesses

Each of these data sources can provide important, confidential, and trade secret records to an unscrupulous competitor or employee. The SHRM article offers sound advice: When your data has been breached, get professional assistance and involve a forensic investigator.

I was listening recently to an interesting Nova Science Now podcast which noted that scientists can’t account for the vast majority of the matter and energy in our universe. For lack of a better term, we call this unknown “dark matter”� or “dark energy.” I began asking: “How much dark matter or energy exists in our businesses, especially when it comes to managing the workforce?”� We’re certainly aware of “what’s there,”� but what effort have we made to tap into the unknown or unrecognized. As Einstein so eloquently reminded us, matter is a subset of energy. In fact, pretty much everything is. So, where’s the hidden, untapped, and potentially lucrative energy that exists in your business? How would we even find out?

These thoughts come to mind:

1. Start with something as basic as an employee survey. Have you done one lately? By asking questions, we can begin to get information. Unfortunately, many companies don’t take this first step because they’re either worried about this being a waste of time and money, or they might get answers that they don’t really want to deal with. Neither objection makes sense. If you’e not willing to survey all of your employees, then survey a representative group and see if the time and money was worth the insight gathered. Draw from the surveys found on HR That Works and see the article below.
2. Create mandatory suggestion systems. The Total Quality Management process requires feedback loops. For example, Dr. Deming encouraged managers to engage in kaizen, otherwise known as total quality circles; or as I might say, a good suggestion system. This was mandated on a regular basis. Encouraging engineers and others to think about how they could do their jobs more effectively led to continual improvement in quality.
3. Have deep one-on-one discussions. Managers and leaders often shy away from real dialogue. For example, how many managers do you know who will ask employees how they can manage better? Spending only five minutes with an employee can reveal a great deal of hidden information.
4. Bring in an outsider; outsiders can see things about your company that you can’t see for yourself. This holds true whether the outsider is a consultant, new employee, client, customer, or vendor. Ask them to tell you what they see about your company that you might not be able to see for yourself.

Powerful Presentation Techniques
(PDF)

Use these guidelines to get your message across to managers, employees, clients, and the public.

HR That Works Members can also access this document in Word format by logging on to the site

Having the wrong executive in the wrong spot might create a legal problem, as well as a business headache. In the California appellate case Align Technology v. Bao Tran, Align sued a former employee, attorney Bao Tran, for stealing their patents and starting a competing law firm. The suit alleged that Tran used confidential information to assist a startup competitor and fund an unauthorized law practice on the side. According to the allegations, Tran used company funds to apply for patents in his own name and for his clients, ran his side business using the company’s phones and computer systems, and misappropriated company property by applying for patents in his own name. Align allegedly learned of Tran’s side business as the result of at least 13 phone calls from his clients, including one call in June 2005 from an individual who indicated that Tran had been his company’s intellectual and patent attorney for three years. Tran denied these allegations and accused Align of defaming him and attempting to undermine his new business.

Bottom line: Don’t assume that your executives aren’t a problem. Many companies focus on rank-and-file employees, even though executives can cause 10 times the damage.

To read the case, click here.

In an appeal from a Los Angeles County case, Wynona Harris alleged that the city of Santa Monica terminated her job as a bus driver because she was pregnant. The city submitted a wealth of evidence regarding the plaintiff’s poor performance on the job, including excessive absenteeism and tardiness. The legal issue involved is the “mixed motive”� defense. The trial court refused to give an instruction that would have allowed the city to argue that it couldn’t be held liable because even if there were discrimination, Harris would have been fired anyway. In reviewing the jury instruction, the appellate court reversed the trial court and stated that the following instructions should apply:

“If you find that the employer’s action, which is the subject of the plaintiff’s claim, was motivated by discriminatory and non-discriminatory reasons, the employer is not liable if the employer can establish by a preponderance of the evidence that its legitimate reason, standing alone, would induce it to make the same decision.”

The court sent the case back to trial using the revised jury instruction; it’s up to the jury to determine whether the alleged reason for the plaintiff’s termination was legitimate or, in fact, a pretext for actual discrimination.

To read the case, click here.

In a Second Circuit case, Karen Duch sued the State of New York for sexual harassment. Duch, a court officer at the Manhattan Midtown Community Court, spoke with a manager who was also an EEO liaison about ongoing harassment. Duch told the manager, “I’m telling you as a friend;” when asked if she wanted the harassment reported, she responded “Absolutely not.” Because of this request and despite her EEO responsibilities, the manager did not report the harassment to anyone. In ruling against Duch, the court stated several conclusions that employers should consider:

• When harassment comes from a co-worker, rather than a supervisor, the employer is held liable only if it fails to provide a reasonable avenue for complaint or to take appropriate remedial action about a problem they know of.
• In this case, Duch had reasonable avenues of complaint, despite the fact the EEO liaison was poorly trained and failed to report her complaints to anyone. Duch acknowledged she could seek assistance from at least five different sources, in addition to the manager.
• Also at issue was the question of whether her manager’s failure to react could be imputed to the company. The court reminded us this would be the case when: (a) the official is at a high enough level of management to qualify as a proxy for the company; (b) the official has a duty to act on the knowledge and stop the harassment; or (c) the official has a duty to inform the company of the harassment. The court held that in this case, the manager did not breach her duty to remedy the harassment because she honored an employee’s request to keep her complaint confidential. The court also ruled that the conduct had not reached the point that a manager simply cannot stand by, even if requested to do so by the employee.
• Unfortunately for the employer, there was another higher-level executive, whose knowledge of the complaints was imputed to the employer. The court stated that when an employee’s complaint raises the specter of harassment, a supervisor’s purposeful ignorance of the nature of the problem would not shield an employer from liability under Title VII. This holds true even where the executive never learned about, and did not witness, the alleged harassment.
• In light of their ruling that a jury could find that there was knowledge of the harassment when Duch requested a schedule change from another manager, a jury could also find that their response was unreasonable. A formal investigation of the complaint did not begin until three months later.

Lesson learned: Be very clear about what you want your managers to do when they suspect or know about wrongful conduct:

• What should they do if they know about it but nobody complains?
• What should they do if somebody complains to them, but asks them not to say anything?
• What should they do when things gets so bad that they should say something despite the employee’s request?
• How should they approach someone about what they might suspect is harassing conduct? Should they say something like, “Is Bob harassing you? Should I speak to the EEO about this? If you want me to keep it confidential I’m going to write this down to protect the company and myself. If you feel you need help, bear in mind that I’ll always report it to a proper superior or you can go directly to that person without involving me if you want to.”

As always, we recommend that all HR That Works members use the Employee Compliance Survey every six months. If the company had done so in this case, it could have avoided the second-guessing and engaged in appropriate conduct. To read the case, click here.

Brenna Louis v. Harlan Inns, a Federal District court case in Iowa, involved a unique set of facts. To make a long story short: An admittedly “masculine looking,”� yet productive woman was not considered “front desk material”� for the Harlan Inn, according to one (female) manager who insisted on front desk clerks coming as close to the perfect “Midwest girl”� image as humanly possible.

The court, relying heavily on the U.S. Supreme Court case Oncale v. Sundowner (1988) stated that the plaintiff’s dismissal and harassment “was because of her sex.” According to the court, “The question is whether [the managers’] requirements that Louis be “pretty” and have the “Midwestern girl” look is because she is a woman.”

Interestingly, the chief judge dissented. He likened the hotel’s actions to declining to hire a female cheerleader because she isn’t pretty enough or a male fashion model because he isn’t handsome enough. The other justices disagreed, arguing that the employer is responsible for proving the affirmative defense that physical appearance is a bona fide occupational qualification (which they could not).

Editor’s comment: One can easily see the arguments on both sides. If I don’t like the way someone looks, I don’t have to work with them, whether I have one employee or 5,000. On the other hand, ther’s the argument that we’ve progressed past the place of permitting discrimination of any kind without a real business justification. Enforcing this level of tolerance or acceptance is always difficult at best. Of course, there’s a proper balancing point someplace. Here’s the case link.

The bottom line: If you’re aiming for a specific “look in employees,”� you might face a lawsuit. A well-known California case involved a manager saying that one of the L’Oreal cosmetic girls wasn’t pretty enough. The fact that she complained about this as a discriminatory remark eventually resulted in her filing a wrongful termination retaliation-based claim.