Quick Clips

Sausage Maker's Defense of Strength Test in Non-Hiring of Female Job Applicants Found Weak, September 30, 2005

by Clifton R. Gray

A group of 52 women were awarded $3.4 million dollars after a federal district court found that a pre-employment strength test, which was required of all potential employees at a meatpacking plant, violated the sex discrimination provisions of Title VII because of its disparate impact on women applicants. (EEOC v. Dial Corp., S.D. Iowa, No. 3:02-CV-10109, 9/29/05).

Dial Corporation, which owns the Armour Star line of meat products, implemented the strength test for entry-level jobs in the sausage-making department of a Fort Madison, Iowa Armour Star plant in 2000. Working in the department was certainly not a job for the physically challenged, as it required the repetitive lifting of a 35-pound rod of sausages to a height of approximately 65 inches (5'5") above the floor level.

The case before the Iowa federal district court stemmed from a sex discrimination charge filed with the EEOC by Paula Liles, a rejected job applicant. Liles, who had performed other "heavy physical work" in the past, met the other job requirements to work in the sausage-making department and was given a conditional job offer until she took the strength test. She was rejected after failing the test. The EEOC thereafter sued on behalf of Liles and 51 other women who were rejected for the entry level jobs, arguing that the test had an illegal disparate impact on women. At trial, it was shown that the strength test was passed by 97 percent of male applicants but only 38 percent of female applicants. Prior to implementation of the strength test, 46 percent of the individuals hired for the job had been women.

Dial defended its use of the strength test, claiming that it was job-related and necessary to reduce on-the-job injuries at the plant. The company also pointed out that the plant's job injuries were reduced subsequent to the use of the strength test. This evidence, however, was not good enough for the federal district court, which agreed with the EEOC's position that the overall reduction in injuries at the plant was likely related to other safety initiatives and not solely on account of the strength test. These "other" safety initiatives included the company's implementation of "an ergonomic job rotation program" for certain jobs, a team approach to increase the rotation, periodic ergonomic and safety audits, and the institution of a back injury prevention program in 2000.

Because of the federal district court's decision and subsequent order, Dial Corporation now must provide for individual back pay and interest awards for the 52 women, ranging from $2,400 to $164,500, depending on the length of time since the applicant was rejected and the amount she was able to earn at other jobs in the interim. Liles herself will receive $112,250 under the judgment.

Department Of Labor Suspends Affirmative Action Requirements For Katrina Contractors, September 26, 2005

Eric Paltell

The United States Department of Labor has temporarily suspended affirmative action requirements for federal contractors performing the recovery work connected to Hurricane Katrina. The waiver applies only to new "Katrina-related" federal contractors and subcontractors, and not to companies that have existing contracts or subcontracts with the federal government.

Under the waiver, new federal contractors performing recovery and construction projects in the areas devastated by Hurricane Katrina will not be required to develop a written affirmative action plan, nor will they be required to prepare the reports, provide notices, or list job openings that are usually required by Executive Order 11246, Section 4212 of the Vietnam Era Veterans Readjustment Assistance Act, and Section 503 of the Rehabilitation Act of 1973. However, these contractors still must post the "Equal Opportunity Is the Law Notice," maintain pertinent records, and file employment listings with appropriate local employment service offices. The waiver will apply for only a three month period, subject to extension "should the national interest require."

Executive Order 11246 imposes affirmative action requirements on non- construction contractors or subcontractors that have 50 or more employees and a federal contract or subcontract valued at $50,000.00 or more. Construction contractors are not required to develop written affirmative action programs.

Court Dismisses Claim By Wife Beating Cop, September 26, 2005

Eric Paltell

In a case that demonstrates why it is important not to get arrested in Springfield, Illinois, a court dismissed a reverse discrimination claim brought by a police officer who had severely beat his wife. The officer claimed discrimination because a non-minority police officer had also beaten his wife, but had not been fired.

The case arose after the officer, David Ballance, a white male, was fired in 2000. Officer Ballance was fired after he beat his wife so severely that he broke several bones and left her bleeding. He then was reported to have obstructed an internal affairs investigation into his conduct, and also had a prior record of 31 disciplinary actions.

When Officer Ballance got fired, he claimed that an African-American police officer had not been fired, even though he had slapped his wife twice. The court rejected Officer Ballance's claim, finding that he and the African-American officer were not similarly situated. Although the African-American officer had some relatively minor disciplinary issues, Officer Ballance had, in addition to beating his wife severely, threatened physical violence to a neighbor, challenged a 65 year old to a fight during a basketball game, failed to report for work on four different days, was involved in an avoidable car accident, had a physical confrontation with a store owner, and responded to an emergency call when he was ordered by his commander not to do so. Additionally, Office Ballance had previously been fired for throwing a rock at a passing car while he was off duty, but an arbitrator reinstated him. To say the least, Officer Ballance was not a model officer!

From a legal prospective, the court's decision in the case, Ballance v. Springfield (7th Cir., No. 04-3410, 9/19/05), demonstrates that a discrimination plaintiff must identify a "similarly situated" comparator to prove discrimination. From a practical perspective, the case provides us with a reminder why it is important to obey the law, avoid getting arrested, and don't have run ins with police officers!

Accurate And Consistent Reasons For An Employer's Adverse Employment Decision Are Essential! September 22, 2005

Kevin J. Allis

The importance of careful consideration of all facts and circumstances surrounding an employment decision by an employer cannot be stressed enough! The facts in the 4th Circuit case of Canavan v. Rita Ann Distributors (Slip Copy, 2005 WL 670777(D.Md.)) pointedly articulates the need for close attention to the facts of an employment decision before a response is given.

Canavan worked as a merchandiser for Rita Ann Distributors ("Rita Ann"). Rita Ann is a nationwide cosmetics distributor that contracts with supermarket chains to set up and replenish cosmetic displays. Canavan was required to drive to approximately eighteen stores per week to set-up and clean displays.

Canavan was hired after her sister Carina was promoted from her position as a merchandiser to supervisor. When Carina was promoted, her sister Canavan was hired and essentially worked the same territory that had been serviced by Carina. Canavan received excellent performance evaluations throughout her employment with Rita Ann.

Canavan had discovered in November of 2002 that she was pregnant. For fear of losing her job because of management changes occurring within the company, and rumors of other employees being reduced from a full-time to part-time status to avoid the payment of health insurance coverage, Canavan delayed telling management about her pregnancy until January 2005. Within 10 days of this notification, Canavan was terminated.

Canavan filed a charge of discrimination with the EEOC, received a right-to-sue letter, and filed suit. Canavan established a prima facie (minimally sufficient) case of pregnancy discrimination. Canavan established that she was pregnant, was performing satisfactorily, and was fired while two other nonpregnant employees were retained. Rita Ann was then required to articulate a legitimate, non-discriminatory, reason for Canavan's termination. Rita Ann proffered that the company was downsizing.

However, Canavan identified shifting reasons given by Rita Ann for her termination. Rita Ann's explanation in a letter to EEOC in July 2003, stated that Canavan was terminated because she was the least senior member of her geographic region. This was not true. Employee Meersman was less senior. Rita Ann later gave as an explanation that Canavan was discharged because Carina, who was being demoted to her merchandising position, had most recently serviced Canavan's territory. This was also not true because Carina had most recently serviced Meersman route prior to Meersman being hired, and prior to her promotion.

Courts have held that an employer's use of different justifications for an adverse employment action is probative of pretext. Additionally, the Supreme Court has explained that an employee's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. As a result Rita Ann's motion for summary judgment and dismissal of the suit was denied.

In conclusion, employers must give clear, accurate, and consistent explanations for why employees have been selected for dismissal should there be any hint of the existence of a protected status, such as pregnancy.

Sixth Circuit Proclaims County Can Fire Adulterous Clerk Under the 1st Amendment, September 15, 2005

Sarah C. Chernish

In a rather soap operatic case, the Court of Appeals for the Sixth Circuit recently held that that the First Amendment rights of a deputy county court clerk to intimate association had not been violated because she was fired after becoming romantically involved with the husband of another court clerk. (Beecham v. Henderson County, --- F.3d ----, 2005 WL 2172050, 2005 Fed.App. 0385P, C.A.6 (Tenn.), September 09, 2005)

Beecham had been a deputy clerk for the county court in Henderson County Tennesee when she met Steve Milam, a local attorney. He proposed to Beecham in 2002, but at the time, he was still married to Patricia Milam, one of Beecham’s coworkers at the courthouse. Head Clerk Kenny Cavness fired Beecham on April 30, 2003, because he felt that Beecham's relationship with Patricia Milam's husband was causing tension in the circuit court clerk's office and in the entire courthouse.

Relying on prior Sixth Circuit case law that held an adulterous intimate relationship was not entitled to constitutional protection, the lower court granted Henderson County summary judgment. The Sixth Circuit affirmed the summary judgment, but disagreed with the lower court’s reasoning, finding that because there was an absence of any actual evidence of sexual acts, genuine issue of material fact existed as to whether Ms. Beecham’s relationship was adulterous. Therefore summary judgment on this basis was not appropriate; however, summary judgment on other grounds was correct.

The court noted that the First Amendment protects the right of individuals to form intimate associations, both with family members and others. Government action that has a 'direct and substantial influence' on intimate association receives heightened review from the courts. However, government action with a lesser impact receives only rational-basis review. In this case, the court found the county’s action had a lesser impact on Beecham and was therefore subject to rational basis review. Although Beecham was fired from one job at one courthouse, she had not been barred from any other employment opportunities.

Under a rational basis review, the government action is constitutional as long as it is supported by a plausible policy reason. The Sixth Circuit determined the county had a plausible policy reason behind firing Beecham because it had determined "that it was unacceptably disruptive to the workplace for a woman employed in the office of one of the county's courts to be openly and 'deeply involved in a romantic relationship' with a man still married to a woman employed in the other county court down the hall." The Sixth Circuit found this was a constitutional use of the county’s authority as an employer.

NLRB Grants Aladdin’s Wish- Actions of Managers at the Aladdin Casino Do Not Violate National Labor Relations Act, September 12, 2005

Sarah C. Chernish

In Aladdin Gaming LLC, 345 N.L.R.B. No. 41, 8/27/05, a majority of the National Labor Relations Board overturned the decision of the ALJ and ruled that the Aladdin Hotel and Casino in Las Vegas did not violate federal labor law when its human resources staff interrupted two employee conversation about union organizing and gave management's view of the matter.

The incidents occurred a few years ago when casino employees were considering unionization. The first incident transpired in the casino’s employee dining room. Two pro-union casino employees were speaking with other employees about signing union authorization cards. The casino’s vice president of human resources stood by listening for approximately two minutes without speaking, and then interrupted the employees' conversation and spoke for about eight minutes about the company's perspective on possible unionization, after which she left the dining room. Another incident occurred two days later when pro-union employees were soliciting casino workers to sign the union authorization cards. The casino’s director of human resources approached them and expressed management's view of unionization. The employee doing the soliciting translated the manager's comments into Spanish for the other worker, who did not speak English.

The ALJ who heard the complaint determined these actions constituted an unfair labor practice because it was unlawful surveillance of employees' union activity. The casino appealed and a majority of the NLRB disagreed finding the actions of the casino’s mangers "were qualitatively different from those in other cases where the Board has found unlawful surveillance" and were "for an even shorter period of time than in other cases where the Board has not found unlawful surveillance."

The Board noted that the presence of the two managers "in the dining room where managers and employees dined was routine and their consequent observation of employees engaged in solicitations was unaccompanied by coercive conduct.” It also pointed out that the dining room is an open area and that the union activity was in the open.

The Board went on to say that Section 8(c) does not suggest that the employer could not express anti-union opinions to employees merely because they are engaged in a Section 7 discussions at the time. "To the contrary, in order to have a free exchange of views in 'a market place of ideas,' that time would be a logical time for the employer representative to express his opinion." Although the employees may stop their Section 7 discussion to listen to the employer representative, "the employees can respond, or ignore him and continue their conversation," the board said. The Board found that the managers had a Section 8(c) "right to assert their views regarding unionization…that they did so during an employee conversation about the Union… does not establish that the supervisors' conduct was out of the ordinary, requiring a different result."

One member of the NLRB dissent strongly. She argued that witness testimony that the first casino manager who interrupted the employees' conversation used a "strong" and "very intimidating" manner, and that the second manager told an employee in the midst of signing the union authorization card that she "shouldn't be signing things that she wasn't sure about," because she was signing "something like a contract" and that the employee doing the soliciting "was probably promising something" that she would not be able to provide” was evidence that the casino had violated Section 8(c). The Board member stated that “this unusual and intrusive conduct be two high-level managers went well beyond merely observing and open display of union activity and would certainly have a tendency to make employees feel that their union activities were under surveillance and discourage them from having discussions about union matters while in the facility."

Terrorist Not Entitled to Minimum Wage and Overtime, September 8, 2005

by Frank L. Kollman

A sixteen-year-old boy who was sent to a church camp for making terrorist threats, instead of a juvenile detention center, sued for compensation under the Fair Labor Standards Act because of the chores he was assigned to do as part of his "Accelerated Christian Education." The federal appeals court hearing the case stated that because the chores were actually educational and rehabilitative, they were not really work under the FLSA. Blair v. Willis, No. 04-2434 (8th Cir., August 25, 2005).

By the way, the church camp has since closed. It appears that in addition to making the attendees perform chores, the camp beat them and punished them with sleep deprivation, at least according to the inmates.

Federal Appeals Court Strikes Down Pro-Union State Law, September 7, 2005

by Frank L. Kollman

Under California law, employers who are state contractors are not allowed to use money received from the state to influence employees in their decision whether to unionize. A federal appeals court, by a 2 to 1 majority, has ruled that this law violates national labor policy as set forth in the National Labor Relations Act. In other words, the state law is pre-empted by federal law regulating labor relations. Chamber of Commerce of the U.S. v. Lockyer, No. 03- 55166 (9th Cir. , September 5, 2005).

This ruling may affect other state laws requiring employers, for example, to enter into "labor peace" agreements. Check this site for further developments.

Maryland Wage Payment Law Does Not Increase Wage and Hour Damages, September 5, 2005

by Frank L. Kollman

Under the Maryland Wage Payment and Collection Law, employees may sue for triple damages if their employers or former employers fail to pay their wages when due. A federal court in Maryland was asked to impose triple damages against a Maryland employer who had failed to pay federal minimum wage and overtime amounts. The employer had, however, paid the improperly calculated wages on time.

The court ruled that the Maryland Wage Payment and Collection Law does not increase damages under the federal wage and hour laws. The court found that if the state legislature had intended this result, it would have said so in the statute. McLaughlin v. Murphy, 10 WH Cases2d 1458 (July 20, 2004).

Employers should nevertheless keep in mind that unless the employee authorizes the employer, in writing, to withhold some or all of his paycheck, failure to pay wages when due can create liability for triple damages.

Title VII’s Anti-Retaliation Provisions Offer Broad Protection For Employees, September 2, 2005

by Clifford B. Geiger

The U.S. Court of Appeals for the Second Circuit recently held that Title VII’s anti-retaliation provisions protect an employee who is named as a witness in a coworker’s Title VII case, even if the employee identified as a witness never testifies. Jute v. Hamilton Sunstrad Corp., - F.3d - (2nd Cir. August 23, 2005). One of Donna Jute’s coworkers, Maryanne Bruton, sued their employer, Hamilton Sunstrad Corporation, claiming she had been subjected to a sexually hostile work environment. Bruton gave a deposition and identified Jute as a favorable witness. Bruton’s claim was eventually settled, so Jute did not provide any testimony. The day after Bruton’s deposition, however, Jute was reassigned to what she claimed was a less favorable position and suffered a string of adverse actions eventually culminating with her discharge. It is illegal, of course, to retaliate against employees who have “participated in any manner” in a Title VII-related proceeding.

The employer claimed Jute had not participated in Bruton’s case because Jute did not testify or otherwise take any deliberate or affirmative action in connection with Bruton’s claim of discrimination. The Court examined various dictionary definitions of the term “participate” and its previous interpretations of the phrase “participated in any manner,” which concluded Congress intended to confer exceptionally broad protection. The Court rejected the employer’s argument and found that being identified as a potential witness counts as having “participated in any manner” in a Title VII proceeding. The Court indicated its interpretation was also supported by the overall purpose of Title VII, and that it would be inconsistent with the goal of combating unlawful employment practices to leave an employee in Jute’s position unprotected against employer retaliation.

When Is An Employee Entitled To Leave Under The FMLA To Care For A Grandparent With A Serious Health Condition? September 2, 2005

by Clifford B. Geiger

The United States District Court for Maryland recently considered under what circumstances an employee may be entitled to leave under the Family and Medical Leave Act (“FMLA”) to care for an ailing grandparent. Dillon v. Maryland-National Capital Park and Planning Commission, - F.2d - (D. Md. 2005). The FMLA provides eligible employees with up to 12 weeks of unpaid leave to care for a parent with a serious health condition. Leave is not available to care for a grandparent. However, the term “parent” is defined by regulation to include a biological parent or an individual who stood in loco parentis to an employee when the employee was a son or daughter.

In Dillon, the Plaintiff sought FMLA leave to care for her grandmother. She informed her employer that her grandmother had raised her and fed her, and that she had slept in the same bed as her grandmother for a number of years. The Plaintiff’s biological mother also lived in the same household. The employer denied the Plaintiff’s request for FMLA leave, taking the position the Plaintiff’s close relationship with her grandmother would be covered by the FMLA only if her grandmother was legally recognized as her parent. The Plaintiff argued her leave request should have been granted because her grandmother had stood in loco parentis and therefore qualified as her parent for FMLA purposes.

The Court rejected the employer’s position, which is inconsistent with the relevant regulations, and proceeded to consider how to determine whether the Plaintiff’s relationship with her grandmother was covered by the FMLA. Judge Chasanow wrote whether an individual is considered a parent for purposes of the FMLA will often be context specific, and that the presence of the employee’s biological mother in this case did not necessarily disqualify her grandmother from being in loco parentis. The key to determining in loco parentis status is the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The Court advised that such intent could be inferred from the acts of the parties, and that some of the factors to be considered include (1) the age of the child, (2) the degree to which the child is dependent on the person to be claiming in loco parentis status, (3) the amount of support provided, and (4) the extent to which duties commonly associated with parenthood are exercised. In Dillon, there was genuine dispute of material fact concerning whether the Plaintiff’s grandmother had stood in loco parentis, so the Court denied summary judgment motions on this issue.

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