Earlier this week, the Equal Employment Opportunity Commission announced that it had filed suit against a national employer for disability discrimination. I know, I know. On its own, that doesn’t sound funny at all.

But when the employer is the Scooter Store, that maven of mid-day TV “Medicare-will-pay-for-it” advertising, I’m sorry, that’s frigging hilarious.

After the title, though, the rest of the press release is not as entertaining:

The EEOC’s lawsuit … alleges that The Scooter Store failed to accommodate an employee’s request for a reasonable accommodation for his disability, psoriatic arthritis, after he sustained a knee injury that required a temporary absence from work. The EEOC’s suit states that the employee timely informed the company he was incapacitated until further notice and that he required a leave of absence to seek treatment for his disability. However, The Scooter Store refused his request and instead fired him, purportedly for job abandonment, although he had presented medical documentation.

What it is, of course, is ironic. And not just in the 1990′s pop music way. This is the classical literature, Greek Philosophy sort of irony. A disability store! Discriminating against a disabled person! And they make scooters! And his disability was a knee injury, which would potentially require a scooter!!

ARE YOU GETTING THIS?!  IRONY!

It’s entirely possible that I only think this is funny because I was an English major at Iowa, and had to debate what irony was with a bunch of Writer’s Workshop wannabes but the fact remains. Irony + Employment Law = Funny-to-Tim.

I thought about where I should link to a definition of irony, but they were all so boring. Then I remembered this graphic which explains the debate over the concept better than I’ve ever seen it. (Caution – There’s Cursing and Grown-Up-Style Drawings on this Poster). Here’s an excerpt:

Ed. Note: This week’s gonna be a twofer. That’s right – twice the ridiculousness for you to waste your time on. In return for my generosity, why not saunter your virtual behind over to this Lexis Nexis page announcing candidates for the Top 25 L&E blogs and vote for Current Employment in the comments?

Diversion #5, subpart (a): Blogging is Expensive

The first of our stories was chosen for two reasons:

1. It hits a little close to home for somebody arrogant enough to write their thoughts all over the internets (e.g.,this guy).
2. It gives me an excuse to congratulate my fellow employment law blogger, Phillip Miles of Lawffice Space on the birth of his baby girl!

I just had a kid 6 months ago, and I can tell you the best part about it is all the congratulations that I receive from people that I only know online. The least I can do is pay that forward, right? Plus if you click on the link to Phillip’s blog, you’ll see that, unlike those super-obnoxious bloggers that force this stuff down your throat,  he’s very humble in his announcement. So, for the second time in CE history, I’m pulling out all my web 1.0 training to make this thing pop:

Congratulations, Phillip!

Babies are the best!

Speaking of obnoxious bloggers, somehow in the midst of having a 0.1-month-old, Phillip found the time to dig up this story about a community blogger in Hennepin County, Minnesota who is paying a hefty price for doing the worst thing you can possibly do to another person on the web: tell the truth about them. From the Minneapolis Star Tribune:

Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.

What the wha?

Here’s the timeline:

• ex-community guy does bad mortgage thing
• blogger tells people about it (with choice words)
• ex-so-and-so gets fired
• ex-guy sues blogger for tortious interference with his employment contract

Tortious interference, for those of you who have regular lives, means you deliberately got in the way of somebody reaping the benefits of a contract. In other words: your blog post got me fired.

My personal opinion is that this case is bunk, and there’s no way this blogger is going to have to shell over $60k for not lying.Truthful speech has to be pretty bad to lose First Amendment protections. It’s being appealed, and he better frigging win or I will shut down this website faster than you can say “wackiest employment law cases”.

Diversion #5, subpart (b): This “Ugly” Thing Has Legs

So, two weeks ago, my Friday diversion was about a sexual harassment case where the employer argued there could be no harassment, because the Plaintiff was too ugly. Remember? Well, I can only assume that my blog post, and not at all this op-ed in the New York Times, touched a nerve with some bloggers. All week, folks have been discussing whether ugliness should be protected under discrimination laws.

SPOILER ALERT! It shouldn’t.

Just because something is a detriment to financial gain doesn’t mean it’s grounds for discrimination. Besides, most of the stereotypes about ugly people are true. I’m not prejudiced though; a lot of my close friends are super-ugly.

But you should read these stories about why it shouldn’t be protected, because they are fun, and one of them has a clip from Seinfeld.

One more thing:

Lots of changes coming to the land of Tim soon. If you haven’t noticed already, this includes a slow, meandering update of the blog. (I think I’ve settled on these fancy fonts. Let me know what you think.) I was going to add a “beta” to the top logo, but I don’t have that kind of gusto. So I’m throwing this down here where no one will read it, instead.

Stay tuned for changes (blog and non-blog), and critique away if you hate something.

This week’s gem is a sexual harassment suit brought by a former employee of a real estate company in NYC. The 23-year-old woman is alleging that at least 7 different male employees physically and emotionally harassed her, including exposing themselves and offering her $500 to watch her get busy with her girlfriend.

That, in and of itself, of course, is not newsworthy for an L&E blog. What makes this our Friday diversion is the stellar legal maneuvering of Odelia Berlianshik, owner of People’s Choice Realty. After making the always-bright decision to talk to nationally-recognized news outlets without being prepped by your lawyer (I hope, at least), Berlianshik defended the company by pointing out that no one would want to touch the former employee, because she’s too ugly.

Seriously.

Most of the time I try to pull some lesson from these stories. This time, the only thing I could think of is don’t tell a newspaper that the former employee/sexual harassment plaintiff they’re calling you about is lying… because she’s unattractive. For what it’s worth.

Found the story on Gothamist, which will take you to NYDN if you want the details.

Ed. Note: So, other L&E bloggers I follow have special Friday things that they post, like roundups of what they read, I think for the express purpose of not giving readers anything too taxing right before the weekend. Not having to worry about “readers” per se, and not feeling any compelling need to post the rest of the week, that part of the special Friday post is lost on me. Nonetheless, I am jealous of all of them for myriad reasons, so I’m stealing the idea. As I’ve said before, one of the influences for this blog was Gary Skoning‘s “Wackiest Employment Law Cases” series.  I figured the regular Friday post would be a great way to pay homage to that tradition, so from now on, every Friday I’m going to link to the most ridiculous L&E-related story I’ve read this week. I’m calling it WTFriday. Clever, right? Okay, here goes:

If you poll a few labor & employment attorneys about what industry has the most L&E sketchiness, one of them is bound to say themselves. Not themselves specifically, but lawyers, as a group. We are the worst.

Don’t believe me? I had a friend from law school that went on three interviews in a month, two small firms and a slightly bigger operation, and all three of them asked her if she was planning on having babies anytime soon.

So, from the “Shouldn’t We Know Better” Desk comes this headline in the ABA Journal:

Lawyer Accused of Harassing Employee, Asking Her to Wear Swimsuit to the Office

Yeah. You read that right. Apparently the prominent Chicago class action attorney (whose name you cannot read here, but is certainly available in the article) is facing a couple of lawsuits for trying to “work out a deal” with some of his female employees, and other totally normal successful-attorney-type behavior like taking off his pants at work.

The attorney says that the employee is raising false allegations because she was recently asked to look for another job.

Happy WTFriday, everybody.

I say “You” because this is a blog – and that means I have super fancy internet magic that shows me who reads this stuff I write, and I can tell you that massive corporations make up about .001% of my ego-killing-ly meager audience.

So this post is to the small businesses, sole proprietorships and freelancers that do read this blog with some regularity (and thank you for it, by the way). I know you all got blasted from your corp lawyers and your local chambers of commerce and your aunts on Facebook telling you about the Supreme Court’s business-friendly stance in Dukes v. Wal-Mart, and how it was such good news for companies in this struggling economy and so on. And I know it’s been tough to gauge where the SCOTUS stood on employment issues for a while, and this case was all about discrimination law, so it seems like a good sign and you guys are probably feeling really good about it and everything. So forgive me for playing with your emotions a little, but this next statement is going to be something of a roller coaster. Just bear with me…

What does the Dukes v. Wal-Mart decision mean for you, small business owner? Nuthin.

Seriously – not a damned thing. If you employ one to one hundred employees, I cannot imagine any scenario by which the Dukes decision will ever have an effect on your business, even if every one of your employees sued the pants off of you at the same time.

But you know what? That’s good. Really good. No, seriously. In a million ways, you do not want the Dukes decision to have any effect on your business.

See, what the Supreme Court was really addressing was not discrimination law so much as a broader question about how discrimination suits are constructed. What the Court said in Dukes was that a LOT of individuals – every woman who’s worked for Wal-Mart from the late 90′s to the present – could not possibly bring a discrimination claim together, as a single class. They didn’t have enough commonality, which is required to certify a class of individuals under a single suit. SCOTUS said that the employees had different managers, at different locations, at different times, and there was nothing concrete in Wal-Mart’s policies to show that they were all discriminated against in the same way.

To be sure, the Dukes decision will change the landscape of national class action litigation going forward. (For detailed analysis of what will probably change, see here, here, here and here.) And it was definitely worth the time and money for Wal-Mart to litigate the class certification question, since it will probably not have to litigate any more gigantic, nation-wide class actions brought by its employees. And that is good for its business.

But, and this is a really big but, it does not mean the end of litigation for Wal-Mart. No matter what anybody says, the Court did not find Wal-Mart “too big to sue“. The point in Dukes was that Wal-Mart’s operations naturally differ from region to region, and store to store, and likely change over time in all these locations. When you put all those factors together, you need some kind of concrete evidence of company-wide discrimination; you can’t use statistics to support certification of a class.

Most of the lawyers on both sides are – understandably – thinking of this from a lawyer’s perspective. The Dukes decision is going to profoundly change class actions as a practice area. It will definitely mean less nation-wide class actions, which is going to alter the landscape of a lot of big law firms, many of which have built entire practice groups around such litigation.  But I don’t think it means that Wal-Mart and other hefty, multinational corporations will face less litigation. While class actions will be smaller, they will be smaller like a frozen can of OJ is smaller than a carton – concentrated, more dense, with more concrete evidence and a laser focus. The class action plaintiff’s bar is not dim – their practices may shift from single boulders to a hundred smaller rocks. Either way, for Wal-Mart, it’s still a mountain of litigation.

But as you’re reading about the “game-changing Wal-Mart decision” just remember that the game it’s changing is probably not the one you’re playing. None of this means anything for the bulk of employers in this country, whose employees couldn’t qualify for a class in the first place, because there’s only so many of them to begin with.

For the rest of us, let’s get on with the work of managing and running your businesses, and taking care of your employees and customers. And while you’re hard at work, thank your lucky stars that a billion people aren’t trying to sue you at the same time.

If you have been doing the labor & employment equivalent of living under a rock The case, Dukes v. Wal-Mart, alleged that Wal-Mart’s pay and promotion policies discriminated against women because of their sex. A handful of current and former women sued the Company on behalf of all women employees from 1998 to the present.

The District Court and the 9th Circuit Court of Appeals had both approved of the class, and a splintered en banc review of the case by the 9th Circuit left it standing, as well. But the Supreme Court knocked it down unanimously. The four most liberal justices joined in a partial dissent, but all the justices agreed that the enormous putative class lacked the commonality required to bring a single lawsuit against their collective employer.

I will put together a big post about the ruling (maybe a few – this is one of those cases you have to “unpack” a little), but here’s the gist, from my initial reading:

Wal-Mart is enormous. Scalia starts off the opinion with this point:

It operates four types of retail stores throughout the country…[which] are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 40 and 53 separate departments and 80 to 500 staff positions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.

Because Wal-Mart is enormous, the Plaintiffs in this case had a really big burden proving that they all had enough of a shared experience to bring a single lawsuit. Basically, what they had to prove was that Wal-Mart has a broad, company-wide policy that disproportionately discriminated against women. The Plaintiffs’ argument was that Wal-Mart discriminated against them by giving its local supervisors broad discretion in making pay and promotion decisions.

A discrimination claim, Scalia says, asks why an employment decision was made…

Here [the Plaintiffs] wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of the all the class members claims for relief will produce a common answer to the crucial question why was I disfavored.

While the Court has made it clear that a policy of local discretion may be a valid basis for a discrimination class-action, it isn’t enough in and of itself. Instead, the Plaintiffs had to show “significant proof” that the local discretion resulted in discriminatory treatment. “That,” the majority said, “is entirely absent here.” This was based on the inadequacy of the Plaintiff’s attempts to show a “culture” of discrimination. Analysis of that part of the decision will have to be the basis for its own post. It’s a key point in the decision, but it’s a lot of info for day 1 of processing the Court’s decision.

The only opinion I will offer up right now is that, while this is no doubt going to be a cited case in every petition for class certification for years to come, there seem to be a couple of points where Scalia limits what many thought would be the first direct hit in the war on class actions.

The Inexcusable

First, Jon Hyman at the Ohio Employer’s Law Blog noted a $95 Million verdict in a single-plaintiff harassment case – probably the largest award ever received by a single employee plaintiff.

The facts in Alford v. Aaron Rents, Inc. are horrendous and gross. Not long after Ashley Alford started working for Aaron’s, her supervisor began making sexual advances toward her and giving her inappropriate nicknames. She called the company’s harassment hotline and never heard back. By the time she involved the police – more than a year later – saying the harassment escalated doesn’t really do it justice. She had been sexually accosted in the most degrading and deplorable manner I’ve ever seen in an employment case.

In deciding on damages, the jury was informed that Aaron’s made a $118 Million profit last year. That means that a jury decided that Ashley Alford deserved 80% of the money Aaron’s made in 2010.

The Test Case

Compare this story with the one delivered today by Business Management Daily about a female custodian at Xerox. Donna Johnson was cleaning a men’s restroom when another employee entered – ignoring the janitorial sign posted outside the door – and began using a urinal. She made some exclamation, and the male employee said that the janitors in Europe just ignored him and went about their business. Johnson left the bathroom and complained to HR.

Xerox responded by immediately counseling the world traveler on the meaning of “closed for cleaning” and transferring Johnson to a different post. When Johnson sued anyway, the court threw the case out saying that Xerox did everything right under the circumstances.

The Point

If I’d just told you about the Xerox case, I know a lot of you would probably think they went a little overboard investigating a sexual harassment complaint based on a man using a urinal. And even more of you are probably calling BS on me comparing the facts of these two cases at all. One of them is horrendous, the other seems relatively innocuous. But look at the Aaron’s case again. It didn’t start out as blatant sexual abuse. It started out as bad-but-not-extraordinary harassment. Maybe even actions that could be “misconstrued” as harassment when “I didn’t mean anything by it.”  Sort of like walking into a toilet when you know a lady’s in there cleaning.

The point is – you as a business person do not know the difference between a simple error in judgment and the first signs of a dangerous proclivity. I do employment law, and I don’t even know the difference. That’s why every allegation of sexual harassment – every single one - has to be investigated quickly and taken seriously. It may not end in discipline or even counseling. It may not involve relocating workers. But employees need to feel like their companies are protecting them from what they see as bad behavior.

And so do the courts. The BMD story points out that even though the Xerox case doesn’t really smack of harassment, the employee still sued. If Xerox hadn’t acted as it did, that seemingly-frivolous lawsuit would still be costing the company real money – in attorney’s fees and settlement payments.

If Ashley Alford had received an appropriate response from Aaron’s harassment hotline, would she have been spared from the horrible things that eventually happened to her? Nobody knows. But if she had, and her supervisor had been disciplined early on, somebody would probably say they were too touchy about harassment and needed to lighten up.

I’ll take a little criticism that I’m too tough on harassment complaints if it means I get to keep $95 million in the bank.

First, Eric B. Meyer over at The Employer Handbook posted about a lawsuit filed by the EEOC on behalf of a woman who was fired from “The Wild Beaver Saloon” (that’s a restaurant – seriously…) because she became pregnant.

Then one of my coworkers shot me a story about waitresses in Atlantic City who were let go after their casino changed hands, and changed (quite drastically) the uniforms they were required to wear. New management broke the news by making the waitresses sift through a bunch of uni’s strewn about a room – all sizes 2 through 4, apparently – and pick one to try on, and then have their photo taken from various angles.

Not long after, according to the waitresses’ age- and sex-discrimination lawsuit filings, they were let go for failing to properly fit in with the new sexy look the establishment was going for.

Shocker.

Look, I’m not going to dwell on the benefits or detriments of these types of places, or whether sex should be used to sell food. I’ll leave that to the city of Evanston, IL. My concern is that places like these seem to feel like termination is the best course of action when trying to change the hotness factor in a workforce, and in just about every circumstance I can think of, that’s an employment-law-no-no.  There are exceptions where youth or sex are bona-fide occupational qualifications, but outside of a strip club dancer , you’re not going to win on that argument. 

Put simply, you don’t have to be a 22-year-old part-time model to serve booze. Or wings, as Eric Meyer points out in his post:

Just ask Hooters which, many years ago, settled a lawsuit brought by men who claimed that they were denied jobs with the restaurant chain.

If that’s not enough of a cautionary tale, I don’t know what is. Except maybe a strip club getting sued for firing a waitress because she’s old.

Also worth noting – in the case of both the strip club and the Wild Beaver, we know about these cases because the EEOC sued on the employee’s behalf. The EEOC loves these cases, and the press releases that go along with them.

It shouldn’t have to be said, but don’t fire an employee because they’re not hot or young enough for you or your clients.  And if your somewhat-sleazy restaurant/casino/bar/internet cafe is going to fire anybody because they’re too old, or too ugly, please call me. I could use the billable hours.

In Staub v. Proctor Hospital, an Army Reservist sued his former employer for terminating him because of his military service, a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA makes it unlawful for an employer to take “adverse action” against an employee where the employee’s military service is a “motivating factor” in the decision.

Staub claimed that his two supervisors lied on disciplinary reports and made up rules for him to follow, because his Reservist duties made it difficult to coordinate schedules, and they wanted to get rid of him. The hospital’s human resources director relied on these reports, in part, in her decision to fire him.

This reliance concept is known as the “Cat’s Paw” theory of employment discrimination. In a cat’s paw case, the ultimate decision-maker may not be biased, but her decision is based on the bias of another employee. Until now, at least, the Seventh Circuit has required that the supervisor’s bias be a “singular influence” on the adverse decision, and any independent investigation by the ultimate decision-maker was enough to make the decision nondiscriminatory. This meant it was super easy to get around a cat’s paw case – just show that the decision-maker conducted an independent investigation, and poof! – the supervisor’s discrimination no longer mattered.

The Supreme Court was having none of it. The Court noted that

An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors… Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it.

Based on the Court of Appeals’ past rulings, the hospital claimed that its HR director’s independent investigation made any discrimination by the supervisors irrelevant. Slam dunk – case dismissed!

The Court rejected the argument, and overruled the Court of Appeals.

What this mean is that, going forward, if a supervisor’s discriminatory actions are intended to adversely affect an employee, and those actions are relied on at all by a decision-maker, the employer will likely be liable for discrimination. Only if the decision-maker’s investigation leads to a completely unrelated reason to terminate the employee can the employer avoid liability.

The Court made a point of reminding us that the employer bears the responsibility to prove all this.

With the Supreme Court’s new ruling, employers are more liable than ever for the actions of their supervisory employees. It is absolutely critical that employers know their supervisors well, and continuously train them in diversity and proper communication practices. And maybe rethink your diversity training – boring, “lets-get-this-over-with” training is probably not going to convince a biased supervisor to be good. You may want to consider more of a “if-you-do-this-s#!$-we-will-can-you-so-fast” type diversity training. It’s your company on the line, after all.

Additionally, any decision to terminate or otherwise adversely affect an employee’s job should be based on a thorough, independent, and neutral investigation by the decision-maker.

Except recently, I’ve felt very much like my wonky, pigeonholed friends, having to explain to guys on the train why the really interesting story “isn’t really what I do.”  Since I have a mouthpiece here, I’m going to try to cut this off at the pass.

Now, I want to make this as clear as possible, so I’m going to write it really “Web 1.0″ to make my point:

The Ines Sainz — N.Y. Jets “controversy” has nothing to do with labor & employment law.

Not a thing. Seriously.

Yes, it involves sexual harassment. But contrary to popular belief, work is not the only place women are harassed.

“But, Tim,” you say, “Ines Sainz was at work. She’s a reporter. That’s her job.”

Ok. Sure. It’s a little bizarre, but I’ll agree with you that Sainz’s workplace is, in fact, the New York Jets locker room. And, just to cut off the next argument, it’s true that it doesn’t matter whether the harassment was caused by her coworkers – it clearly wasn’t, since her coworkers are mostly in Fuentes del Pedrogal, Mexico. Whether right or wrong, it’s pretty settled that an employer can be liable for harassment by third parties – usually that means customers or contractors, but anybody will do, including Clinton Portis.

So what’s the problem? Well, for now at least, one half of the “employment” picture is missing – the allegation is that the Jets and the NFL should’ve done more to protect Sainz’s rights as a reporter. Nobody’s accusing Sainz’s employer, TV Azteca, of doing anything wrong.

Another major issue with Sainz’s potential harassment case is that Sainz herself isn’t all that worked up about it. She apparently didn’t even hear whatever cat calls got the Jets into hot water. Instead, the Association of Women in Sports and Media contacted the NFL on her behalf. If this was employment law, that’d be a deal breaker. In the Seventh Circuit, at least, discrimination and harassment claims can’t be brought by a third party – it’s got to be the victim.

So there you go. Besides just being a dull conversation piece, the Ines Sainz thing is, sadly, not in my wheelhouse. Sorry. The next time I see you at a party, forget the harassmenst stuff. Ask me what I think about the looming 2012 lockout. Now that’s interesting…