Issues In Employment Law – November 2001

Discriminatory comments made by a manager can constitute circumstantial evidence of discrimination, even when that manager is not the decision-maker.

Employers should have clear policies against discrimination of any kind, and must enforce a zero tolerance for discriminatory remarks. It is especially important that this policy be applied equally to members of management and supervision. Remarks made by any management level employee can constitute indirect evidence of discrimination if that employee or manger is involved in an employment-related decision.

In Bernstein v. Sephora, No. 99-02010, (S.D.Fla. January 11, 2002), an employee was found to have been passed up for a promotion because of her race, even though the decision-maker of the promotion was not the person making discriminatory remarks. The employer argued that the manager making discriminatory remarks was not the decision-maker and the employee was passed up for promotion due to her qualifications. The Court disagreed and found that the manager was involved in the decision-making process of the promotion, and therefore his bias constituted directed evidence of discriminatory intent.

Employers must ensure that their policies against discrimination and harassment are enforced – including informing employees of the policies, vigorously investigating claims, and instituting corrective and preventative measures when such claims are made.

It is not enough that employers have anti-discrimination policies in effect. Employers must take action to ensure that employees understand the policies, and are aware of the numerous types of discrimination that are actionable under Title VII and other anti-discrimination laws. Without serious effort to eliminate and prevent discrimination in the workplace, Employers subject themselves to punitive damages awards.

The Fourth Circuit Court of Appeals, which decides Federal law for Maryland, Virginia, West Virginia, North Carolina and South Carolina, recently upheld an award of punitive damages against an employer who was found to have discriminated against a pregnant employee in Golson v. Green Tree Financial Servicing, No. 00-2365 (January 10, 2002). Punitive damages can be awarded for a Title VII violation when the action was conducted “with malice or with reckless indifference to the federally protected rights ” of the employee. In this case, the employer challenged its liability based the existence of its anti-discrimination policy, which was posted throughout the office and included in employee handbooks. The Court found, however, that the employer did not include any information regarding discrimination against pregnant employees, nor did it ever make its managers aware that pregnancy discrimination is actionable under Title VII. Furthermore, although an anti-discriminatory policy was in effect, the employer was not committed to enforcing its policies, as evidenced by the employer’s failure to follow-up on the employee’s claims.

Offering education and training to employees and managers is an excellent way to exhibit a good-faith effort under Title VII and to ensure the employees understand the laws. We encourage you to contact us if you have questions or concerns about the policies and efforts you currently have in place.

Employers are permitted to consider an employee’s disability in making employment decisions if an employee’s disability poses a severe and continuing threat to other employees and the workplace, under certain circumstances.

If an employer believes that an employee’s disability creates a threat of harm to other employees, the employer may consider such disability in making employment decisions about that employee, consistent with the four factors delineated by the EEOC on this point.

In Hutton v. Elf Atochem North America, Inc., No. 00-35683 (9th Cir., Oregon, November 28, 2001), the Ninth Circuit Court of Appeals, which covers federal law in Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and California, endorsed the four-factor test used by the Equal Employment Opportunity Commission (EEOC) to determine when a disabled employee would pose a direct threat of harm, including (1) the duration of the risk (2) the nature and severity of the potential risk, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.

In the Hutton case, an employee with Type-I diabetes was found to be unqualified for his position under the American with Disabilities Act because of the risk his disability posed to himself and others. In this case, the employee worked in a chemicals plant and had experienced blackouts from low blood-sugar spells. The employer worked with its doctors as well as those of the disabled employee to determine if there were actions to be taken to prevent the blackouts. Despite these efforts, however, there were no guarantees from the doctors that these blackouts would not occur. As a result, there was a substantial threat that the employee’s blackout and potential loss of consciousness could lead to catastrophic results, including death of the disabled employee as well as others working in the plant.

Although this case shows that employers are not expected to put their business or employees in danger in order to accommodate a disability, it is still important to follow the guidelines of the ADA. Employers should still treat a disabled employee’s request for an accommodation with appropriate diligence. If an employer feels that an employee’s disability presents a direct harm to the workplace, the employer should contact us for counsel on how to proceed with the situation.

A pregnant employee who is unable to fully perform her job may request FMLA leave per her doctor’s recommendation even though she may have an otherwise normal pregnancy.

In Whitaker v. Bosch Braking Systems, No. 1:00-CV-522, (W.D. Michigan, August 27, 2001), the pregnant employee worked in a job where she was standing most of the day and also frequently worked mandatory overtime. Her doctor told her that she needed to limit her work schedule to eight hours a day, and the employee requested FMLA leave from mandatory overtime. The employer argued that a pregnancy in itself is not a serious health condition, but rather is only serious when it incapacitates the employee. The Court agreed that pregnancy in itself was not a serious health condition; however, it noted that if the employee’s pregnancy renders her unable to perform a function of her job, then it is a serious medical condition. In this case, although the employee was physically able to stand for more than eight hours a day, her doctor warned her that doing so could result in early termination of the pregnancy or premature labor. As the employee was required to work overtime as a condition of her employment, the Court found that her pregnancy was a serious health condition that prevented her from performing the duties of her job, and therefore she was qualified to take FMLA leave.