Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Upcoming Talks

July 17, West Covina "Critical Human Resources Issues for Business Owners" Click here for more information.

 

No “Retaliation” Unless It's "The" Motive

The plaintiff, Dr. Nassar, was a physician of Middle Eastern descent on the university faculty and also on the staff of Parkland Hospital in Dallas. After determining that his indirect supervisor was (allegedly) prejudiced against Middle Easterners and feeling harassed by her, he began negotiations to resign from his faculty position while continuing to be on staff at the hospital. Although normal policy was for staff physicians to also be faculty members, the hospital offered Dr. Nassar a “pure staff” position. Dr. Nassar then wrote a letter of resignation to his Department Chair at the university, saying that he had been a victim of racial and ethnic harassment by his supervisor. The Chair was angry that the supervisor had been “publicly attacked” in Dr. Nassar’s letter, and he contacted the hospital and said that Dr. Nassar should not be a staff member because he was no longer on the faculty. The hospital withdrew its job offer. Dr. Nassar sued, asserting a number of claims, including Title VII retaliation based on this sequence of events.

 

The key issue before the Supreme Court was whether a plaintiff in a Title VII retaliation case had to prove that “but for” the retaliatory motive he would not have been subjected to adverse employment action (in this case, having a job offer withdrawn). The plaintiff, joined by the EEOC, argued that he should be required to prove only that retaliation was “a” motivating factor but not necessarily “the” dispositive factor.

 

The majority opinion essentially held that the retaliatory motive had to be “the” determining factor. For the most part, the decision was based on the placement of the anti-retaliation provisions in the Title VII statute. Under Title VII, a discrimination plaintiff can prevail if he or she can show that a discriminatory motive played “a” role in the employment decision. The employer can then show that it would have taken the same action anyway, and if the employer succeeds, the plaintiff’s relief is limited, but the employer is still considered liable.

 

However, the retaliation provisions are in a different section of Title VII and say essentially that a plaintiff can recover if he or she shows that adverse employment action was taken “because of” the plaintiff’s legally protected activity.

 

In 2009, the Supreme Court held that “because of” language in the Age Discrimination in Employment Act meant that, in age cases, the plaintiff had to prove that “but for” a discriminatory motive, the plaintiff would not have been discriminated against. Applying this standard in this case, the Nassar court held that the same applied to Title VII retaliation claims, although not to Title VII discrimination claims. The Court specifically rejected the EEOC’s interpretation to the contrary in its Compliance Manual.

 

The majority decision is obviously another important victory for employers. As the Court noted, “claims of retaliation are being made with ever-increasing frequency. . . . Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-discrimination except race.” Holding plaintiffs to relatively strict burdens of proof will certainly give beleaguered employers some relief.

 

MISO to Pay $90,500 to Settle Disability Discrimination Lawsuit

Midcontinent Independent Transmission System Operator (MISO), a Carmel, Ind.-based power grid operator for much of the Midwest, will pay $90,500 and furnish other relief to settle a disability discrimination lawsuit by the EEOC.

 

According to the EEOC's suit, a MISO employee suffered from postpartum depression, a condition the employee made known to the company. Yet when she requested leave time to help her resolve the condition – leave which was available under the company's policies – the company denied her request and fired her for lack of attendance. After being fired, the employee filed a discrimination charge with the EEOC.

 

While insisting that having an employee in her position was critical, MISO nevertheless waited more than a month after her anticipated return-to-work date to fill the position, and then allowed the new employee to delay her own start date by another three months. 

 

The Americans with Disabilities Act (ADA) requires an employer to provide a reasonable accommodation of an employee's disability, unless the employer would suffer an undue hardship as a result. An employer's duty to provide an accommodation is a continuing one, and proving a prior accommodation does not absolve the employer of liability for failing to provide an accommodation in response to a subsequent request. 

 

Although postpartum depression is not a permanent condition, it had substantially limited more than one of the employee's major life activities for several months when MISO fired her, the touchstones of disability under the ADA. The effects of an impairment that is expected to last less than six months can still be substantially limiting under the ADA.

 

In addition to monetary relief ordered by the court under the three-year consent decree resolving the lawsuit, MISO is obligated to provide training to its employees on its obligations under the ADA and post an employee notice about the lawsuit informing employees of MISO's duty under the law to maintain a workplace free from unlawful discrimination. The company must also provide annual reports to the EEOC including details of how all other requests for accommodation are handled by MISO, and allow the EEOC to monitor compliance with the decree. The EEOC also obtained an injunction against MISO prohibiting unlawful disability discrimination and retaliation.

 

Factoids

• 57% of employees are only somewhat or not at all pleased with their benefits
• 78% say they are extremely or very important to their job selection

• % of employees who get these popular benefits 
  • Health                             76%  
  • Dental                             67%  
  • Retirement                     66%  
  • Vision                             60%  
  • Life                                 58%  
  • Short term disability       55%  
  • LTD                                49%  
  • Accident                         48% (EBRI survey)

 

Quotes

“It's so simple to be wise. Just think of something stupid to say and then don't say it.”

~Sam Levenson~