HR & the Law in the News
December 2015, Volume 14, Issue 12
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 this month and into 2016.  Then don't miss the discounted, annual subscription to FiveL Company's 2016 webcast series.  Save $147 and get access to all 11 webcasts for the price of 8. Each is pre-approved by HRCI and SHRM for 1.25 credits! Click here for more info or to register. 
Ignorance is Bliss?     
Ignorance is Bliss?
There are lots of grey areas and questions we want to avoid when interviewing candidates or talking to our employees.  You know what they are - protected health information, medical information, even hobbies that might give us a peek into a person's protected status such as religion.  While trying to keep the list of rules straight might be a pain there is a proactive and defensive reason for avoiding those slippery slopes.  You can't discriminate against what you don't know. That was the crux of a recent case decided by the 11th Circuit Court of Appeals (covering AL, GA, FL).  

Despite the fact that a senior official announced that he wanted to fill a vacancy with a white person because there were already two blacks in the department, the employer prevailed when an Asian employee filed a lawsuit after he applied for the promotion and was not given the job. Why?  The senior official did not know the employee's race. Said another way, he actually thought the employee was white.  In fact, the employee had self-identified previously as white but later changed his self-identification to Asian (he was the son of a Swedish father and Japanese mother). The senior official was unaware of the revised self-identification.  The court held, "Without knowledge of [the candidate's] Asian racial identity, the [senior official] cannot have acted with an intent to discriminate based on that identity."  
A Word of Caution - Before you get feeling too comfy about this decision, remember the string of "Cat's Paw" cases we saw a few years ago? You may recall the fable. Well, life does imitate art.  Pleading ignorance might not work when your employment decision is swayed by another who has a racial, ethnic or similar animus or bias. Take the case above.  If the senior official had been the pawn of or manipulated by another official who knew the employee's race, did not want the employee to get the promotion because of his race and convinced the senior official to not hire him for some other reason, then the employee might have had a case.  

Lessons Learned?  I stick with my usual word of warning, "You can't discriminate against what you do not know."  Ignorance is a good defense (and sometimes bliss). So is good documentation (yes, the dreaded "D" word).  If you are making employment decisions in conjunction with others or based on others' feedback ask for documentation to support the various positions.  Before a Director fires an employee or decides to not promote an employee as a result of poor performance reported by a manager, the Director should ask for documentation or supporting evidence of poor performance.  Not because we want to build a culture of distrust but because we want to build a culture that is accountable for its actions and can demonstrate sound business practices. 
No Take Backs!
Have you ever had this scenario? It's not terribly uncommon.  An employee submits his or her resignation.  
While you're doing your happy dance behind closed doors the employee knocks and says, "I've changed my mind; I want to stay."   

That was the scenario in a recent case decided by the 5th U.S. Circuit Court of Appeals (covering LA, MS, TX).  In this case the employer so, "No take backs."  OK, not in those words but they told the employee it was too late. So what?  How did this get into court?  Well it turns out that after the employee submitted her resignation but before her employment ended two things happened: (1) she participated in a grievance hearing alleging she had been sexually harassed during her employment and (2) she requested and was granted a one-month extension to her notice period. 

When the notice period ended she said she wanted to stay; she no longer wanted to resign.  The Executive Director denied her request.  And who was the person the employee testified had harassed her?  You got it; the Executive Director.  Oops.  

So the court held that there was at least a reasonable inference that her having participated in the grievance regarding sexual harassment, which was a legally protected activity, could have a causal connection to the Executive Director's action. That, in turn could make his denial of her request unlawful retaliation. 

Lessons Learned?  Don't make decisions about adverse employment actions in a vacuum.  Partner with HR or some resource outside your and the employee's chain of command. Look at your policy and your past practice.  Consider if there have been any unusual, recent events that might give rise to a basis for discrimination.  Even if the answer is, "Yes" that does not mean you have to back away from a sound business decision.  But you want the chance to analyze how the action might appear and ensure you have a sound, documented defense. 

Note: Are you wondering how one party can rescind an offer after it has been accepted?  Good for you.  That's not how it usually works.  Once you have offer and acceptance then you usually have an agreement.  Rescission generally must occur prior to acceptance.  Well, the court covered that too.  Since the employer had granted a one-month extension to the employee's notice period the court found it reasonable that the employee's resignation "was still negotiable and not finalized."    
  •  Wednesday, December 2nd - Webcast, "Talent Assessment" hosted by NAMIC 2:00 - 3:00 pm EST
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  • Wednesday, January 27th - Webcast hosted by FiveL Company "When Worlds Collide: Religion in the Workplace" 10:00 - 11:15 a.m. EST (NOTE: Register for the year and get all 11 for the price of 8. Click here)
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Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.