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Not Today, Maybe Tomorrow: Unlawful Harassment Redefined?


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Pregnancy: A Preferred Protected Class?



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HR & the Law in the News
June 2015, Volume 14, Issue 6
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "Contractors, Interns & More (Oh My!): Managing Non-Traditional Workers" plus archived programs! Click here for more info including LAST CALL for 2015 discounted, annual subscriptions - get the remaining 6 for the price of 5! 
Not Today, Maybe Tomorrow: Unlawful Harassment Redefined?

We know employees have the legally protected right to oppose unlawful harassment and discrimination. But does the unlawful conduct have to actually exist today? If an employee tells you that she thinks she is going to be harassed next month, is that a legally protected activity? 

Just how reasonable does her belief have to be that she is or is going to be a victim of harassment or discrimination to afford her the right to be free from retaliation for expressing the concern? How do we determine if the employee's belief is "reasonable?" Here's the recent case.

An employee (black, female) comes to your HR manager and reports she has been subjected to a hostile work environment (HWE) by her supervisor (white, female) who twice in a 24-hour period called her by a racial slur.  HR conducts an investigation and although the manager denies using a racial slur it appears more likely than not that the supervisor engaged in at least inappropriate and unprofessional conduct. Simultaneous to the investigation you inquire about this employee's work performance (congratulations, you're the company President).  The Department Director tells you her performance is poor, describing her as having failed in every role she's been given. 

It is now four days after the employee first reported the incident.  Your Department Director issued corrective action to the supervisor for her actions.  What do you do now with this poor performing employee? 
  1. Was she subjected to unlawful, racial harassment?
  2. If you fire her, can she claim she was subjected to unlawful retaliation if the answer to Question #1 is "No"?
  3. If you decide to fire this poor performing employee, can she sue you as an individual for unlawful harassment and retaliation?
These and other questions were recently addressed and a new answer was established for employers in the states covered by the 4th U.S. Circuit Court of Appeals (MD, VA, WV, NC & SC) in a 106-page decision issued May 7, 2015.

Question #1 first.  Are two isolated comments in a 24-hour period enough to constitute unlawful harassment or create a HWE?  The court first reminded us that "an isolated incident of harassment, if extremely serious, can create a hostile work environment."  So while one isolated remark usually will not constitute unlawful harassment, if it is made in the context of threats or humiliation then it might. In this case, the supervisor not only called the employee a racial slur but did so while yelling at and berating the employee so close to her face that the supervisor reportedly "sprayed" the employee's face with saliva. (yuck)

Question #2. Even if it was not unlawful harassment, can the employee still prevail in a claim of unlawful retaliation? It is possible if she was either actually subjected to unlawful harassment; "reasonably" believed she was subjected to unlawful harassment; or reasonably believed such harassment was "taking shape" or in progress (the, "I am;" "I thought I was;" or "I will be" assertion).  So the question for the court was whether it was "reasonable" for this employee to believe she was subjected to a HWE as a result of two isolated remarks in a 24-hour period or that she would be based on prior, culminating conduct. 

Question #3. Suffice it to say I would not ask this question about individual liability if the answer was, "No."  The employee sued the employer and the company President in his individual capacity for both unlawful racial discrimination by virtue of a HWE and retaliation.

If you want to know how this story ends stay tuned as it has been remanded to the lower court for further consideration. Until then, this court finds that, "Under today's decision, employees who reasonably perceive an incident to be physically threatening or humiliating do not have to wait for further harassment before they can seek help from their employers without exposing themselves to retaliation."

Lessons Learned?

  • Keep the goal in mind. As employers we want to maintain a workplace that is not only free of unlawful harassment but is civil and respectful.  The court describes a similar goal, " We seek to promote the hope and expectation...that employees will report harassment early so that their employers can stop it before it rises to the level of a hostile environment."  
  • Time is everything - well, it's at least powerful. If this employee's performance was so poor it warranted termination why was she still working there?  Was there prior and proper documentation?  Why now? Why was the employee discharged just four days after expressing her concern?  Ask yourself these questions when considering adverse employment action.  Has anything out of the ordinary happened lately that could give the appearance of retaliation?  If yes, that does not mean that you cannot or should not proceed with corrective action, including discharge. But be prepared to answer these questions. 
  • Use a sounding board.  Whether it is in your in-house or external legal counsel or a fellow member of your executive team, don't go it alone.  When you are aware that an employee (may have) recently engaged in some type of protected activity (asking for FMLA leave; filing a workers' compensation claim; or expressing a concern about wages, hours or some condition of employment) bounce your options off of someone else.  Generate options and associated risks.  Then you may be more fully informed and prepared should your actions be challenged.
  • Train, train, train - your staff and managers!  Forget the law I say!  Stay true to your policies, which likely hold employees to a higher level of conduct than the law.  Remind everyone of the expectations of civility and respect in the workplace.  Add to that, the resources available to report concerns of harassment or discrimination. Reassure employees about your no-retaliation provision and what that means. In a supplemental program remind managers about their duty to prevent and correct unlawful harassment as well as how to keep them safe from individual liability!   
Next Webcast
This month's webcast, 
"Contractors, Interns & More (Oh My!): Managing Non-Traditional Workers
June 24, 2015 10:00 - 11:15 a.m. EST

Click here for a program description or to register.


$49 per person. Live and archived webcasts are pre-approved by HRCI and SHRM for 1.25 credits. 
Discounted group rates available. Click here for more information. 
Get the remaining 6 for the price of 5
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Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Public Speaking Events
Friday, June 12th - FiveL Company's 9th Annual "HR & the Law" full-day seminar, Columbia, MD. Pre-approved by HRCI & SHRM for 6.5 credits. Only 13 seats left! Click here for more information or to register

Wednesday, June 17th - "Employment Law, Legislative & Regulatory Update" hosted by the Maryland Association of Affirmative Action Officers (MAAAO).  
Upcoming Client Training Programs
  • Maintaining an Inclusive Workplace - 5 sessions: CT & MD
  • Sustaining a Safe & Respectful Workplace - FL & VA
  • HR & the Law for Managers - MD
  • Tactical & Practical Employee Relations - MD
Pregnancy - A Preferred Protected Class? 
On March 25th the U.S. Supreme Court addressed the question of whether pregnancy was the new "favored nation status" when it comes to an employer's obligation to provide reasonable accommodation.

Let's suppose that your policy and practice provide that if an employee injures him or herself while working you will provide that employee with modified or light duty.  This is a practice recommended by your workers' compensation carrier to help reduce your experience rating and related costs.  For other employees with injuries, however, your general practice is not to regularly provide light or modified duty, other than as required as a reasonable accommodation under the Americans with Disabilities Act for an employee with a disability.  

So, now an employee comes to you, tells you she is pregnant and her physician has imposed some work restrictions for the next eight weeks until her delivery for which she needs a modified or light duty job.  Does the Pregnancy Discrimination Act, which like Title VII of the Civil Rights Act covers employers with 15 or more employees require you to provide this employee with light or modified duty when you would not do so for another employee, such as a male employee with a broken leg? The Court ruled - possibly.  In short the Court held that we need to consider a few factors in these scenarios:
  1. Did the employer accommodate others "similar in their ability or inability to work"?
  2. If yes, does the employer have a legitimate, non-discriminatory reason for doing so? NOTE: "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates."
  3. Can the plaintiff provide any evidence that the reason given in #2 above is a pretext?

In 2012 I had the honor of testifying before the U.S. Senate HELP Committee during a hearing on Return-to-Work (RTW) and Stay-at-Work (SAW) programs.  Toward the end of the hearing Chairman Harkin asked us, "Why don't employers do more to help employees stay at work and return to work?"  My response was with reference to walking on eggshells.  Sometimes employers are afraid of doing the wrong thing so we do nothing.  So I share this as an illustrative example.  


If I am an employer that is following the recommendations of my WC carrier, we've paid good money to implement proactive return-to-work (RTW) and stay-at-work (SAW) programs. This includes finding modified and light duty opportunities for (1) persons with disabilities because we may be required by the Americans with Disabilities Act (ADA) to do so and (2) for individuals who have injuries compensable under workers compensation.  So, if those reasons are not sufficient and I have to provide modified or light duty for my pregnant employees, I ask this. 


What do I say to my male employee who has the broken leg and needs modified or light duty for the next eight weeks? Tough luck, sorry we give that to our pregnant women but not our guys?  And then how do we defend the next claim that may be likely to arise from that same male employee (oh what the heck, let's make it a class action lawsuit on behalf of all my male employees) who sue for adverse impact? They allege that although I did not intend to discriminate against men I am now doing so because I'm providing modified/light duty for pregnant women but not for men with similar, short-term conditions. I hope you have good litigating counsel for that one.  Try that or we contact our Congressmen now and ask for legislative reform to shape public policy that ensures equity for all employees who are similarly situated, regardless of gender. 

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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