Work Matters

Mixed-motive v. but-for instructions

On March 25, in a 2-1 opinion in Smith v. Xerox Corp. that will almost certainly go en banc, the 5th Circuit set out burdens of proof in a Title VII retaliation case. An employee filed a charge of discrimination and later was fired. She sued, claiming it was because of the charge. The employer said no, it was because of her performance. She won at trial. The employer appealed and argued that the jury was not instructed properly. The court gave a motivating factor instruction: The employee need only show the charge was one reason in the termination decision, even if there were other legitimate reasons (aka a mixed-motive instruction). The company said this was incorrect and that a "but for" instruction should have been given: The plaintiff must prove there was no legitimate motivation for the employer's action. Employers always want a but-for instruction, and employees always want a motivating-factor/mixed-motive instruction. (By the way, the court nuked one of my favorite arguments, namely that in a mixed-motives case the plaintiff must concede that discrimination was not the sole reason. As the 5th Circuit saw it, what plaintiff would agree that "Gee, I think you may some good reasons along with the bad reason for your retaliation?" My paraphrase. The court said that there will always be competing stories and that’s why we have juries.) This fight is of more than academic interest. While juries end up doing what they want, for the most part, regardless of the charge, these legal filters are how courts view a summary judgment or a judgment as a matter of law. They matter, and they matter a lot.

History of permitting FMLA leave grounds airline's defense to ADA claim

On March 22, the 5th U.S. Circuit Court of Appeals handed down a most unusual opinion. The employee was a flight attendant for Southwest Airlines. He has psoriatic arthritis that resulted in him spending anywhere from 33 percent to 50 percent of each month unable to move. He was disabled within the meaning of the Americans with Disabilities Act. The airline allowed him to take intermittent FMLA leave for his condition. Ultimately he was terminated for violating the airline's attendance policy. He sued under the ADA. He won at trial, the trial court tossed the verdict, and the 5th Circuit said it was wrong to do so. Southwest argued that the flight attendant was not a "qualified individual with a disability" because regular attendance was a necessary qualification for the job. So far, so good. But now the 5th Circuit did something I have never seen: It held that because the airline approved the requests for intermittent leave, then attendance on scheduled days at the job (any job) was not required by the airline. Here is the court: “[T]here was sufficient evidence that [Southwest's] own actions reflected that attendance on scheduled days was not required. Southwest approved [his] intermittent FMLA leave, which permitted [him] to miss over half of each working month without notice. . . . it could reasonably be found that Southwest essentially conceded that [he] was qualified by granting him intermittent FMLA leave and then tolerating his FMLA-approved absences for seven years." The court went on to say that a winning argument for the airline may have been that the employee's disability prevented him from showing up for work consistently on his scheduled days, but that is cutting the salami a little thin. It is hard to see how this reason is much different from the attendance reason. So, an employer that honors its legal obligations under one law may end up violating its obligations under another. Carmona v. Southwest Airlines Co.

Rethink work to improve outcomes

I'm reading "Rework" by Jason Fried and David Heinmeier Hansson. Some of their many workplace insights:

Can plans. The authors nail it: Plans are rigid, trying to project the future. They are just guesses. The authors' gem: "Plans are inconsistent with improvisation." My take: Plans give us a false sense of control.

Dump workaholics. These employees want to be heroes. They are not. "They don't save the day, they just use it up."

Hire great writers. Why? Good writing is a sign of clear thinking, in whatever discipline the employee works.

Send employees home by 5 p.m. Employees who have other things to do will be more efficient in what they do at work.

Treat employees like adults. Employers often want to control every aspect of an employee's day. "When you treat people like children, you get children's work . . . When everything needs approval, you create a culture of nonthinkers."

There is more. Lots more. The book is rich, like chocolate cake. Dig in.

Understanding others' aspirational identities creates the possibility for leverage

Do you want to change a colleague or to nudge him toward adopting a new identity? Then say this to him: “Joe, I know you are the kind of (insert what he is – lawyer, paralegal) who cares about (insert desired change -- careful analysis, meeting deadlines)." At least that is what I gathered from Chip Heath and Dan Heath’s new book, "Switch: How to Change Things When Change is Hard." They argue that people ask themselves three questions from day to day: "Who am I?" "What kind of situation is this?" "What would someone like me do in this situation?" The Heaths argue that if you believe someone aspires to be a certain sort of person, then you can leverage their aspirations and thus their conduct through this question. They cite a company that stopped calling its workers "employees" and started calling them "inventors." This change resonated with the workforce who, in 2008, came up with 134,846 ideas; that’s an average of 145.2 ideas per "inventor." The Heaths: “We’re not just born with an identity; we adopt identities throughout our lives . . . people are receptive to developing new identities, [and] that identities 'grow from small beginnings.' " Yes there is a movie in which we star playing in our minds. The script can change.

Clinging to hierarchy provides fertile territory for union organizing

I am reading "How to be a Fierce Competitor: What Winning Companies and Great Managers Do in Tough Times" from Jeffery J. Fox. It's 60 chapters, each about two to three pages each -- the way more business books should be. Anyway, he has a chapter on how companies can remain union free. Some of his advice:

1. Employees have families; don't let the job interfere with family life. I agree with this view. When an employer denies a request for time off, the employee can be OK with the denial as long as there is an explanation, not just a "no."
2. Remove frustrations and policies that prevent people from doing their best. This is also true. Sometimes the most important motivator for employees is the satisfaction of doing good job and getting something accomplished.
3. Obliterate visible lines between management and workers. Fox says to toss out things like executive washrooms, executive dining rooms, privileged parking spaces for the execs and gargantuan offices.

I want to take a minute and talk about this last point. Hierarchy is a poison. Organization-chart authority is no substitute for moral authority. I think the election of President Obama and the activities of the first lady will continue to create a greater sense of inclusion, the understanding that we are equal to one another. Also, the sense of betrayal from the recent economic meltdown is still percolating through the collective consciousness. Its full force is yet to be realized. Holding on to hierarchy, in light of these changes, will provide talking points for union organizers. Bet on it. 

Fine distinctions matter in same-sex harassment cases

The issue of same-sex harassment continues to bedevil the courts. The law needs clarity. That's why the opinion in Anne Durkin v. Verizon New York Inc. from the U.S. District Court for the Southern District of New York caught my attention. According to the opinion, a female employee at Verizon received numerous comments from her female co-workers on her breast size: “Did you have breast surgery?” and "Are those your real boobs?" Those remarks were coupled with requests to see her breasts and for her to take off "the miracle bra.” Some of these co-workers came to work on Halloween with their breasts stuffed and wearing a name badge saying "Annie." She sued for a sexually hostile work environment based on same-sex harassment. Claim or no claim? Recall that any hostile environment claim must be "because of sex." The court framed the issue this way: Did her co-workers personally dislike her and elected to harass her by way of her breast size, or did her co-workers dislike her and harass her because of her breast size? In the first scenario, there would be no claim. In the second scenario, there might be, which is why the court denied the company's motion for summary judgment on this claim. The court said a reasonable jury could conclude the female co-workers were jealous of her breast size, that she got better treatment because of her breast size (there was some indication she received more overtime than her female colleagues) or that she was treated differently because of her breast size. Yes, I know, this is slicing the salami a little thin, but a same-sex claim rests on precisely these type of fine distinctions. A lawyer who doesn’t make those distinctions is unwise. He could allow claims regarding employee behavior that's based on pure dislike to sneak into the legal system without the brake pedal the statute’s "because of sex" language provides.

Baseball scandal prompts thoughts on zero tolerance policies in the workplace

News is breaking today that the manager of the Texas Rangers, Ron Washington, tested positive for cocaine last season. Reports are that it was a one-time event, and Washington offered to resign, but Nolan Ryan, the Rangers president, declined to accept it. So Washington stays on as Rangers coach. As I tap this out at a bookstore, I am listening to sports talk radio, which is buzzing about the development. All this leads me to think about zero tolerance policies in the workplace in general. Under such edicts, one violation of a rule results in immediate termination. Lawyers often see zero tolerance language in drug and anti-harassment polices. So, should the Rangers fire Washington? I have written before on this topic. My answer is no. I have zero tolerance for zero tolerance policies. Lawyers should encourage employers to look at each situation in context: Did the employee express true remorse? Has he not just acknowledged responsibility but also set out how he will avoid a recurrence? Does he have an otherwise good work history? Employers should ask these questions before deciding to impose the workplace equivalent of capital punishment. Those who promulgate zero tolerance polices often get a shocker: The first person who violates it is a key, long-term or beloved employee. Shock No. 2, managers often do not want to (and will not) enforce a policy they perceive as too harsh. Look, American civil rights laws are based on the idea that everyone is valuable and should be treated as an individual. Our workplace policies should do no less.

ADA decision from the 1st Circuit offers interesting analysis

On Feb. 5, the 1st Circuit came out with an opinion chock full of interesting stuff regarding a claim under the Americans with Disabilities Act. The case deals with sections not changed by the ADA amendments that took effect Jan. 1. An assistant manager of a restaurant needed shoulder surgery. Unfortunately, the surgery was of little help, and her physician’s final work release prohibited her from performing repetitive activity with her right arm and from lifting objects weighing more than five pounds. She was terminated shortly thereafter and sued. The court of appeals affirmed the trial court's summary judgment. Of interest:

• The plaintiff claimed that her "primary" function was management and thus she did not need to perform physical work in her job. The court: Wrong. "The essential functions of a position are not limited to the ‘primary’ function." Here, the employer’s job description explicitly stated that performing manual work was an essential function of her management position. 
• The plaintiff then argued that the restaurant had shifted many of her physical tasks to others when she was on leave and it could do so again. The court: Wrong. "An employer does not concede that a job function is 'non-essential' simply by voluntarily assuming the limited burden associated with a temporary accommodation."
• The plaintiff argued that, as a manager, she could delegate physical tasks to others. The court: Wrong. "It would be unreasonable for [her] to delegate so many tasks that she would no longer be performing her essential function of physically assisting with the restaurant's operations. [She] must be able to perform a sufficient number of manual tasks on her own."

Keep this case, Richardson v. Friendly Ice Cream Corp., in mind as the number of disability lawsuits start to mushroom.

The problem with requiring a full release before letting injured workers back on the job

Claim or no claim: A company policy requires injured workers to have a full release to return to the job, meaning they must obtain a medical release with no restrictions. Answer: claim. Why? Such a policy is a per se violation of the ADA. It sweeps too broadly. The ADA requires an individualized inquiry regarding the employee's ability to do the job, with or without a reasonable accommodation. Several courts have so held, most recently the U.S. District Court for the Northern District of Indiana on Feb. 9 in Powers v. USF Holland Inc. The Powers court denied the employer's motion for summary judgment on the claim of a per se ADA violation. (Plaintiffs in these cases are well advised to file their own motions for summary judgment on a per se claim.) Friendly advice to employers: Nuke these polices, as well as polices that fire all injured employees who are on medical leave for a specific period of time. Like the full-release policy, these sweep too broadly. They indicate employers won't, per the rule, engage in a reasonable-accommodation dialogue with possibly ADA-covered employees. If an employer insists on retaining such a rule, lawyers should argue for an escape clause that says the employer will enforce the rule consistent with the company's ADA obligations.

Dealing with denial in the workplace

Richard S. Tedlow's book, “Denial: Why Business Leaders Fail to Look Facts in the Face — and What To Do About It" is full of insights about the refusal to deal with reality. Tedlow mentions Professor Allan Cohen's litmus test: “Are the private conversations that follow meetings more frank and honest than the public discussions in the meetings themselves?” If so, people are not saying things that need to be said. Another clue that denial is a problem: A person who speaks up about a problem is cut down subtly in front of colleagues by someone who does not want to face facts (and likely wants to keep his or her Alpha status, no matter the cost). If attacks on the competition are popular, Tedlow suggest asking: “What am I using this derision to hide, perhaps from myself?" The book is full of case studies of high-flying businesses that crashed and burned because their leaders could not confront reality. (The leaders often thought they were doing so but were not. They simply said "I believe X," and sycophants parroted that back. That's just looking for validation.) But beware trying to convince an organization to deal with things as they really are. People who speak the truth are seldom, if ever, rewarded. The book's best writing comes where a Ford exec tries to tell Henry Ford the company needs to move away from just producing the Model T. The book quotes parts of his polite, professional and often euphemistic memo. He still got whacked. Look, many leaders are not bad people. It is just that they, like most people, often think they are smarter than they really are. If you're in an organization that simply won't confront what's going on, perhaps it is best to vote with your feet. Recall the movie "Scent of a Woman." Charlie, the student, is walking down Fifth Avenue with Lt. Col Frank Slade and spills his guts about a moral dilemma he faces. Slade says, "Charlie --- about your little problem --- there are two kinds of people in this world: those who stand up and face the musicand those who run for cover. Cover is better."  Can I get a hoo-ah for that?