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Employment Law News

VIEWS: 442 PAGES: 12

									                                               Attorney General Nancy Rogers’ Employment Law Section 
Summer 2008                                                                                                                      Volume 5, No. 2

                                                      Supreme Court Wraps Up ‘Labor Intensive’ Docket
 Inside
                                                         In the United States Supreme Court term that ended in June, the justices decided
  • Supreme Court Wraps up                            only 71 cases, the lowest number in recent memory. However, the Court’s interest in
   “Labor Intensive” Docket ........... 1             labor and employment issues is not waning, as shown by no fewer than ten opinions
                                                      addressing issues about laws that govern the workplace. Here are some of the high-
  • Sixth Circuit Broadens Plaintiffs’                lights of the 2007-2008 term:
   Rights In Discrimination &
                                                      “CLASS OF ONE” THEORY REJECTED
   Retaliation Cases ........................            In a case with major implications for state employers, the Court held that public
  • Ohio Supreme Court Weighs                         employee lawsuits based on the Equal Protection Clause of the U.S. Constitution are
    In on Two Forms Of Alleged                        limited to actions in which the discrimination is allegedly based on the employee’s
                                                      membership in a recognized group.1 Anup Engquist brought suit claiming she was
   Employer Retaliation ................. 6
                                                      arbitrarily mistreated and denied equal protection merely based on who she was, not
  • New SPBR Order Will Demand                        based on any class she was a member of the so-called “class of one” theory. Specifi-
   Prompt Case Preparation .......... 7               cally, Engquist accused her supervisor of excessive monitoring and making false state-
                                                      ments about her. The supervisor later reorganized the department so that Engquist’s
  • Proposed New FMLA Regulations
                                                      position was eliminated and she had no displacement rights to another position.
   Undergoing Review .................... 8               The Court, while recognizing that the “class of one” theory has been recognized
  • Disparate Impact: Does Your                       when the government acts as a regulator, e.g., in taxation and zoning matters, con-
   Agency Maintain Employment                         cluded the employment context was different. The Court stressed that as an employer,
                                                      the government has a lot more leeway than it does as regulator or sovereign, adding
   Practices that are “Fair
                                                      that “government offices could not function if every employment decision became a
   in Form but Discriminatory
                                                      constitutional matter.”2
   in Operation”? ..........................10            The Court also noted the impracticalities of the class of one theory: “The practical prob-
  • 2008 Has Given Birth to a Slew                    lem with allowing class-of-one claims to go forward in this context is not that it will be too
                                                      easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of
   of Pregnancy Discrimination
                                                      such claims in the first place, and courts will be obliged to sort through them in a search
   Claims .......................................11
                                                      for the proverbial needle in a haystack.”
  • Harassment of Men
                                                      SECTION 1981 ENCOMPASSES RETALIATION
   by Women ................................ 12          In CBOCS West Inc. v. Humphries, the Supreme Court held that a Civil War-era race
                                                      discrimination statute encompasses retaliation claims. 2 U.S.C. Section 1981 (Section
                                                      1981) permits all persons to “make and enforce contracts,” irrespective of their race.
 Attorney General Nancy H. Rogers                     Courts have consistently found that it applies to employment contracts, and its amend-
 Employment Law Section                               ments in 1991 expanded the law beyond only creation and enforcement of employment
 150 East Gay Street, 22nd Floor                                                                                                CONTINUED...
 Columbus , OH 43215-3428                             1
                                                        Engquist v. Or. Dep’t of Agric., 128 S. Ct. 216 (2008)
 Phone: (614) 644-7257                                2
                                                        Id. at 2151.
 Fax: (614) 752-4677                                  
                                                        Id. at 2157.
                                                      
                                                        128 S. Ct. 1951 (2008).
    Employment Law News

contracts. Employees who allege race discrimination in the work-       However, the Supreme Court reversed the decision. The Court,
place can bring Section 1981 claims without first filing a charge      reasoning that the system must be accessible to laypersons, held
with the EEOC, as is required in advance of Title VII discrimi-        that the charge requirement is met as long as the aggrieved par-
nation suits.                                                          ty notifies the EEOC of 1) an allegation; 2) the name of the
    Humphries, an associate manager at a Cracker Barrel restau-        charged party; ) a request for the EEOC to take remedial ac-
rant, alleged his supervisor terminated him because of his com-        tion, protect an employee’s rights, or settle a dispute between an
plaints about racially discriminatory behavior. In finding Section     employee and employer. The holding in Holowecki is limited to
1981 encompasses retaliation claims, the Court cited interpreta-       ADEA charges, and it remains to be seen whether it will be ap-
tions of another post-Civil War civil rights statute, 2 U.S.C. Sec-   plied to EEOC charges under Title VII.
tion 1982, which prohibits race discrimination in the inheritance,
                                                                       EMPLOYER MUST PROVE REASONABLENESS IN
ownership, and leasing of real estate. In 1969, the Supreme Court
                                                                       ADEA/RIF CASE
held that Section 1982 not only protects those who are deprived of
                                                                           The Court addressed the interplay between the Age Dis-
the substantive housing rights covered in the law, but also people
                                                                       crimination in Employment Act and employer reductions in
who advocate the rights protected by Section 1982.
                                                                       force (RIFs) in Meacham v. Knolls Atomic Power Laboratory.7 In
    In Humphries, the Court also found persuasive the legislative
                                                                       Meacham, the Court ruled that after an employee shows the em-
history behind the 1991 amendments to Section 1981, and cases
                                                                       ployer’s practice has a disparate impact on workers over the age
that had interpreted those amendments as providing for retali-
                                                                       of 0, the burden is on the employer to prove the criteria it used
ation claims.
                                                                       for the reduction was a “reasonable factor other than age”8 [For
EEOC CHARGE REQUIREMENT LOOSENED IN                                    a detailed discussion of the disparate impact theory of discrimina-
ADEA CASES                                                             tion, see Drew Piersall’s article on page 10 ]. The employer un-
    The Court, in Federal Express Corp. v. Holowecki,5 held the        successfully argued that the employee-plaintiff should bear the
failure to strictly comply with the charge filing requirement un-      burden of proving the employer’s criteria were unreasonable.
der the Age Discrimination in Employment Act (ADEA) did                    In Meacham, to carry out its RIF, the employer used as crite-
not bar a subsequent lawsuit under the Act. The ADEA requires          ria managers’ assessments of individual employees’ performance,
an aggrieved employee to file a charge with the EEOC at least          flexibility, and critical skills. The result was that 27 of the 28
60 days before filing a federal suit. In Holowecki, the plaintiff, a   employees who were laid off were over the age of 0.
FedEx employee over the age of 0, filed an agency intake form             The Court did place the burden on the plaintiffs to “isolate and
with the EEOC, accompanied by a six-page affidavit, in which           identify the specific employment practices that are allegedly respon-
she alleged FedEx established a new compensation plan based on         sible for any observed statistical disparities.” 9 The Court explained
performance benchmarks that were veiled attempts to force older        that this requirement would discourage frivolous litigation.
workers out of the company before they would be eligible for re-
                                                                       “ME, TOO” EVIDENCE IS CASE SENSITIVE
tirement benefits. The affidavit concluded: “[p]lease force Federal
                                                                           Though the Supreme Court had agreed to decide whether
Express to end their age discrimination plan so we can finish out
                                                                       so-called “me, too” evidence was admissible in a RIF age dis-
our careers absent the unfairness and hostile work environment
                                                                       crimination case, the Court ultimately declined to give a definite
created [by FedEx’s new requirements].”6
                                                                       yes or no answer. The job of the 51-year-old plaintiff in Sprint/
    When the employee filed her subsequent suit, a lower court
                                                                       United Management Co. v. Mendelsohn10 was eliminated in a
dismissed the action for failure to file a formal EEOC charge.
                                                                       RIF. At trial, Ellen Mendelsohn tried to introduce testimony
                                                                       of other Sprint employees who worked under other supervisors
5
    128 S. Ct. 117 (2008).                                            and alleged they were discriminated against on the basis of their
6
    Id. at 1159-1160.                                                  age in the RIF. She said this evidence would show a pervasive
                                                                       attitude of age discrimination.
        The Employment Law News is provided to raise aware-                The trial court ruled Mendelsohn was limited to evidence of
     ness regarding employment-related issues. The contents of
     this newsletter should not be considered legal advice and                                                           CONTINUED...
     readers are encouraged to contact Attorney General Nancy          7
                                                                          128 S. Ct. 295 (2008).
     H. Rogers’ Employment Law Section at (614) 644-7257 for
                                                                       8
                                                                          See 29 U.S.C. § 62 (f )(1).
                                                                       9
                                                                          Meacham, 128 S. Ct. at 205.
     specific advice.                                                  10
                                                                           128 U.S. 110 (2008).


     
                                                                                                   Summer 2008, Vol. 5 No. 2

discrimination against employees who had the same supervi-                   Sixth Circuit Broadens Plaintiffs’ Rights
sor and were terminated around the same time as Mendelsohn.
However, the Supreme Court stated that “me, too” evidence
                                                                             In Discrimination & Retaliation Cases
                                                                                 Our Section continues to keep a close watch on employment
provided by employees with different supervisors “is neither per
                                                                             cases in the U.S. Sixth Circuit Court of Appeals, because aside
se admissible nor per se inadmissible.”11 The Court added that
                                                                             from cases that reach the U.S. Supreme Court, Sixth Circuit
the issue of relevance does not often lend itself to per se rules, but
                                                                             decisions determine how federal law will be interpreted in Ohio.
instead requires a factually specific inquiry.
                                                                             There have been several Sixth Circuit decisions this year resolv-
OTHER CASES                                                                  ing questions of first impression in this jurisdiction or calling
    The Supreme Court this past term also:                                   into question what had previously appeared to be the law. With
  • found that federal labor law preempted a California statute              one exception, these decisions have expanded employee rights or
    that sought to prevent employers from using state money                  made it easier to prove discrimination.
    to “assist, promote, or deter union organizing.” Chamber of                  Proving “Mixed Motive” Discrimination by Circumstan-
    Commerce v. Brown, 128 S. Ct. 208 (2008);                               tial Evidence Made Easier. The Civil Rights Act amendments
  • held the ADEA prohibits retaliation against federal employ-              of 1991 codified the “mixed motive” approach to proving dis-
    ees who complain about alleged age discrimination. The law               crimination. Congress adopted a new subsection, 2 U.S.C. §
    was previously established that the ADEA protects private                2000e-2(m), which provides:
    sector and other non-federal employees from retaliation. Go-                 Except as otherwise provided in this subchapter . . . an
    mez-Perez v. Potter, 128 S. Ct. 191 (2008);                                 unlawful employment practice is established when the
  • ruled a Kentucky retirement system did not violate the ADEA,                 complaining party demonstrates that race, color, religion,
    even though it provided greater disability retirement payments               sex, or national origin was a motivating factor for any em-
    to retirants who became disabled prior to retirement age com-                ployment practice, even though other factors also moti-
    pared with retirants who became disabled after retirement age.               vated the practice.
    Ky. Ret. Sys. v. EEOC, 128 S. Ct. 261 (2008);                               Another 1991 amendment provided the employer a limited
  • concluded parties to a collective bargaining agreement can-              affirmative defense to a claim under § 2000e-2(m). If the em-
    not by agreement expand the limited scope of review given to             ployer shows that it “would have taken the same action in the
    courts under the Federal Arbitration Act. Hall St. Associates,           absence of the impermissible motivating factor,” it is liable only
    LLC v. Mattel, 128 S. Ct. 196 (2008); and                               for declaratory relief, certain types of injunctive relief, and attor-
  • held the Employee Retirement Income Security Act (ERISA)                 ney’s fees and costs. 2 U.S.C. § 2000e-5(g)(2)(B).
    provides a remedy against a plan’s breach of fiduciary duty that             In Desert Palace, Inc. v. Costa,1 the Supreme Court held that
    lessens the value of the assets of a contributor’s individual account.   in a “mixed motive” case under § 2000e-2(m), a plaintiff was not
    Larue v. DeWolff, Boberg & Assoc., 128 S. Ct. 1020 (2008).               limited to showing an impermissible motivating factor through
    After the Supreme Court begins its new term in October,                  “direct evidence,” but could do so through circumstantial evi-
the justices will again have many labor and employment issues                dence. In the wake of Desert Palace, many circuits, including the
to decide including the scope of “protected activity” that can give          Sixth Circuit, held that a plaintiff was restricted to the frame-
rise to retaliation claims under Title VII; the rights of states             work established in McDonnell Douglas v. Green2 to demonstrate
to prohibit union dues from being deducted for political activi-             a circumstantial case of discrimination, whether in a “single mo-
ties; whether an arbitration clause in a collective bargaining               tive” or a “mixed motive” case.
agreement can lawfully waive employees’ rights to file statutory                                                               CONTINUED...
discrimination claims, and whether the Pregnancy Discrimina-
tion Act (PDA) is violated when an employer fails to restore re-
tirement service credit for pregnancy leave that occurred before
                                                                             1
                                                                               59 U.S. 90 (200)
                                                                             2
                                                                               McDonnell Douglas Corp. v. Green, 11 U.S. 792 (197), requiring that
the effective date of the PDA [For more on the PDA, see Megan
                                                                             the plaintiff show a prima facie case of discrimination (usually through
Boiarsky’s article on page 11].                                              a showing that the plaintiff was replaced by a member of a different
                                MicHAEL c. McPHiLLiPS                        group or was treated differently than similarly situated persons in a
                                                                             different group), then allowing the employer to articulate the non-dis-
                                       SEctioN cHiEF
                                                                             criminatory reason for the challenged action, and finally permitting the
                                                                             plaintiff prove that this reason was a pretext for unlawful discrimina-
                                                                             tion.
11
     Id. at 11.
                                                                                                                                                 
    Employment Law News

     Recently, in White v. Baxter Healthcare Corp., the Sixth Cir-          flicts with decisions of at least three other circuits, and appears
cuit reversed course, and held that a plaintiff may survive sum-             to be unique among federal appeals courts across the country.
mary judgment in a “mixed motive” case by presenting any cir-                    The Thompson decision is difficult to reconcile with prior re-
cumstantial evidence sufficient to show that an impermissible                taliation decisions, given the purpose of Title VII’s anti-retali-
factor infected the decision in question. The Court held that the            ation provision – to preserve access to avenues of complaint and
McDonnell Douglas framework “does not apply to the summary                   redress for those who complain. The test for actionable retali-
judgment analysis of Title VII mixed-motive claims.” Rather, a               ation under the recent Burlington Northern decision8 is whether
“mixed motive” plaintiff “need only produce evidence sufficient              the adverse action would deter the plaintiff from complaining.
to convince a jury that: (1) the defendant took an adverse em-               It is quite possible that firing Thompson would have deterred his
ployment action against the plaintiff; and (2) [an impermissible             fiancée from further complaints, but arguably the proper plaintiff
characteristic] ‘was a motivating factor’ for the defendant’s … ac-          in that case would be the fiancée whose access to remedies was
tion.” The court reasoned that the McDonnell Douglas test was               interfered with – not Thompson.
best adapted to exposing the real motive when there was only a                   The Employer Need Not Be The Retaliator. In Hawkins v.
“’single, ultimate reason for the adverse employment decision.’”5            Anheuser-Busch, Inc.,9 another case of first impression, the Sixth
     In White, the plaintiff’s less-than-stellar performance evalu-          Circuit held that harassment by co-workers in retaliation for the
ation resulted in a loss of salary, and thus constituted an adverse          plaintiff’s protected activity is actionable, if the employer knew or
employment action. The rater had previously made statements                  should have known of the harassment and “its response manifests
indicating a discriminatory animus towards African-Americans,                indifference or unreasonableness in light of the facts the employer
such as “nobody wants to be around a black man,” and applied                 knew or should have known.” This is similar to the familiar stan-
a harsher set of standards to the plaintiff’s performance than to            dard for employer liability for coworker harassment, where liabil-
others. Only future cases, however, will clarify what evidence               ity is not derivative but depends on the employer’s own acts or
will be sufficient to raise a jury question of a “mixed motive.”             omissions.10
     Protected Activity Not Required For Retaliation Plaintiff:                  More fundamentally, the Hawkins court redefined what we
In Thompson v. North American Stainless, LP, the plaintiff was fired        normally understand to constitute a hostile work environment.
three weeks after his fiancée had filed an EEOC charge. In a deci-           Ordinarily, to be actionable, harassment must be sufficiently se-
sion of first impression in this Circuit, the court held that a plaintiff    vere or pervasive to alter the conditions of the victim’s employ-
need not actually have engaged in any protected activity to sue for          ment and create an abusive work environment. The Hawkins
retaliation under Title VII, 2 U.S.C. § 2000e-, which prohibits            court instead employed the less stringent Burlington Northern
retaliation against an employee “because he has opposed any prac-            standard. That is, an actionable retaliatory hostile work envi-
tice made an unlawful practice by this subchapter, or because he has         ronment is one that would “dissuade a reasonable worker from
made a charge, testified, assisted, or participated in any manner in an      making or supporting a charge of discrimination.”11 This new
investigation, proceeding, or hearing under this subchapter.” Rely-          standard will make actionable, under a retaliation theory, harass-
ing on the canon of statutory construction that “a court should go           ment that would not survive summary judgment in an ordinary
beyond the literal language of a statute if reliance on that language        sex, race or religious harassment case because it is insufficiently
would defeat the plain purpose of the statute,” the majority held that       “severe or pervasive.”
it is enough that a retaliation plaintiff be “so closely related to or as-       Closeness in Time, Without More, Can Prove Retaliation.
sociated with the person exercising his or her statutory rights that it      In a long line of retaliation decisions beginning with Nguyen v.
would discourage that person from pursuing those rights.”7                   City of Cleveland,12 the Sixth Circuit has maintained that the
     One judge dissented, noting that Congress could have creat-             temporal proximity – i.e., closeness in time – between the pro-
ed a cause of action for close associations, but the plain statutory         tected activity and the adverse action is, in and of itself, insuf-
language shows a different legislative choice. Thompson con-                 ficient to establish a causal connection between the two. Rather,
                                                                                                                                 CONTINUED...

  __F.d __, 2008 U.S. App. LEXIS 1188 (6th Cir. Jul. , 2008).

  __ F.d at __, 2008 U.S. App. LEXIS 1188 at * 7-8.                      8
                                                                                Burlington Northern & Santa Fe Ry. Co. v. White, 58 U.S. 5 (2006)
5
  __ F.d at __, 2008 U.S. App. LEXIS 1188 at * 50, quoting Wright          9
                                                                                517 F.d 21, 5-7 (6th Cir. 2008).
v. Murray Guard, Inc., 55 F.d 702, 720 (6th Cir. 2006) (Moore, J.,         10
                                                                                 See Blankenship v. Parke Care Ctrs. Inc. 12 F.d 868, 87 (6th Cir.
concurring).                                                                 1997), cert. denied, 522 U.S. 1110 (1998).
6
  520 F.d 6 (6th Cir. 2008).                                              11
                                                                                 Hawkins, 517 F.d at 7.
7
  Id. at 67.                                                                12
                                                                                 229 F.d 559, 567 (6th Cir. 2000).


    
                                                                                                  Summer 2008, Vol. 5 No. 2

some additional evidence was necessary to infer that the adverse            “background circumstances” must be; one decision appears to
action was motivated by the protected activity. Occasionally,               hold that the mere fact that the decision-maker was African-
other Sixth Circuit decisions have suggested that temporal prox-            American is a sufficient “background circumstance” to “support
imity alone might suffice to establish a prima facie claim of re-           the suspicion” of discrimination. Another panel of the Sixth
taliation, at least when the two are “acutely near in time.”                Circuit recently found this facet of the Arendale opinion to be
    In Mickey v. Zeidler Tool & Die Co.,1 however, the plain-              non-binding and therefore not the law of the Circuit.19
tiff was fired the same day his employer learned of his EEOC
                                                                                                             JAck W. DEckER
charge. The court reasoned that when “an adverse employment
                                                                                     PRiNciPAL ASSiStANt AttoRNEy GENERAL
action occurs very close in time after an employer learns of a pro-
tected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection
                                                                            19
                                                                                 Goller, supra.
for the purposes of satisfying a prima facie case of retaliation.”
When “some time” elapses, other evidence of retaliatory conduct
is required. Otherwise, if an employer immediately retaliates
against an employee upon learning of his protected activity, the
employee would be unable to couple temporal proximity with
any such other evidence of retaliation because the two actions
happened consecutively,” making it harder to prove retaliation
when the proximity was very close.1
    What “very close in time” means remains open to interpreta-
tion. Judge Batchelder concurred, maintaining that Nguyen had
been properly interpreted by prior panels but that an exception
existed when knowledge of protected activity and adverse ac-
tion were “virtually contemporaneous.”15 In a recent unpublished
opinion, the Sixth Circuit, relying on Mickey, held that a two
month interval was sufficient, without more, to establish a prima
facie case of retaliation. 16
    Background Circumstances of Reverse Bias Required For
Hostile Work Environment Claims. In cases of “reverse” dis-
crimination involving adverse employment actions, the Sixth
Circuit has required the plaintiff to demonstrate “background
circumstances [to] support the suspicion that the defendant is
that unusual employer who discriminates against the majority.”
In Arendale v. City of Memphis,17 the Sixth Circuit extended
these precedents to a hostile work environment created by a mi-
nority supervisor, allegedly because of the Caucasian race of the
victim. Ultimately, the plaintiff’s claim failed because he could
not show the reason for the alleged abuse was his race rather
than a mere personality conflict.18 It should be noted, how-
ever, that there is a great deal of uncertainty how extensive these

1
   516 F.d 516 (6th Cir. 2008).
1
   Id. at 525.
15
   Id. at 529.
16
   Goller v. Ohio Dep’t of Rehabilitation & Correction, No. 07-750, 2008
U.S. App. LEXIS ___ (6th Cir. Jul. 18. 2008).

17
     519 F.d 587, 60-05 (6th Cir. 2008).
18
     Id. at 605.


                                                                                                                                       
    Employment Law News

Ohio Supreme Court Weighs In On Two Forms Of Alleged Employer Retaliation
EMPLOYER LAwSUIT AGAINST COMPLAINING                                    not, in fact, retaliatory. 2 The three-Justice opinion concurring
EMPLOYEE NOT PER SE RETALIATORY UNDER                                   in part and dissenting in part agreed that “the mere filing of a
OHIO LAw.                                                               lawsuit by an employer is not per se retaliation.”  In short, “[l]ike
    Consider the scenario where an employer wins an employee’s          all citizens, employers who are truly aggrieved deserve the op-
sexual harassment case in court, and then turns around and sues         portunity to have their cases heard.”
the employee for having filed the claim. Is the employer setting            The Court split, -, though, on the second question – how
itself up for a retaliation lawsuit? It took three different lawsuits   to distinguish the “truly aggrieved” employers who “deserve the
to engage the Ohio Supreme Court to resolve this issue of first         opportunity to be heard” from those engaging in illegal retalia-
impression.                                                             tion. The majority opinion adopted the “not objectively baseless”
    After nearly two years of litigation, defendant Laszlo Temesi       standard. Approaching the issue from the First Amendment per-
secured a defense verdict in Tammy Greer-Burger’s sexual ha-            spective, the Court recognized that the First Amendment does
rassment lawsuit under Ohio’s civil rights statutes in Ohio Re-         not include the right to file “sham” litigation. A case is a sham
vised Code Chapter 112. Temesi’s victory came with a $2,000           if it is “objectively baseless in the sense that no reasonable liti-
price tag in attorney fees and costs. So, several months after          gant could realistically expect success on the merits.”5 The Court
obtaining the verdict, Temesi filed his own lawsuit against             determined that lower courts should use the summary judgment
Greer-Burger for malicious prosecution, abuse of process, and           standard to address whether a lawsuit is “not objectively baseless,”
intentional infliction of emotional distress, all relating directly     which means that the “employer needs to ‘show[] his lawsuit rais-
to the sexual harassment lawsuit. Temesi sought to recover his          es genuine issues of material fact.’ If the employer satisfie[s] this
attorney fees and punitive damages. While Temesi’s case was             standard, the suit does not fall under the definition of sham litiga-
pending, Greer-Burger went to the Ohio Civil Rights Commis-             tion,”6 and the suit is not, itself, retaliatory. The minority would
sion (“OCRC”), claiming that Temesi’s mere filing of the law-           also allow an employer to show that its lawsuit was not retaliatory,
suit constituted retaliation for her earlier lawsuit. The OCRC          but considers the “not objectively baseless” standard to be “a very
agreed that filing the lawsuit was per se retaliatory, and it not       low threshold.”7 The minority would allow an employer to sue an
only ordered Temesi to cease and desist his retaliation (namely,        employee who had brought a “totally baseless claim.”8
abandon his lawsuit), but even awarded Greer-Burger $16,000 to              The employer’s right to redress, though, remains far from
cover her attorney fees for defending against Temesi’s lawsuit.         clear. First, the mere filing of a lawsuit can be retaliatory, if the
    When appeals from the OCRC’s decision reached the Ohio              lawsuit is objectively baseless. Of course, that is a determina-
Supreme Court, it characterized the issue as “whether enjoin-           tion that the court will make only after the employer files suit.
ing the prosecution of a well-founded lawsuit commenced in              The employer, though, must resolve that question in a pre-suit
response to the prosecution of an unsuccessful harassment law-          vacuum, predicting the unidentified judge’s decision. The wrong
suit violates the right to petition the government for a redress of     prediction could result in an immediate finding of retaliation
grievances.”1 The threshold issue was whether Temesi’s lawsuit          merely for filing the suit. Second, both the majority and mi-
was per se retaliatory. If not, then the second question was how        nority may have left the door ajar for an employee to maintain
to weed out the retaliatory lawsuits from the legitimate ones.          a suit against an employer even if the employer demonstrates
    The Ohio Supreme Court unanimously resolved the first               that its lawsuit is not objectively baseless. In their discussion of
question in favor of the employer. The four-justice majority            Temesi’s demand for punitive fees, and dislike for per se rules,
opinion recognized that the right to seek redress in court is a                                                            CONTINUED...
fundamental right, which was not without limitation but which
should not be curtailed blithely. Thus, even assuming that              2
                                                                          Id. ¶ 16.
Greer-Burger could establish a prima facie case that Temesi’s           
                                                                          Id. ¶ 8.
lawsuit was retaliatory, the Court found it “prudent to permit          
                                                                          See id. ¶ 11.
an employer the opportunity to demonstrate that the suit” was
                                                                        5
                                                                          Id. (quoting Professional Real Estate Investors, Inc. v. Columbia Pictures
                                                                        Indus., Inc., 508 U.S. 9, 60 (199)).

                                                                        6
                                                                          See id. ¶ 11.
1
  Greer-Burger v. Temesi, 116 Ohio St. d 2, 2007-Ohio-62, 9        7
                                                                          Id. ¶ 16 (citations omitted).
(2007).                                                                 8
                                                                          Id. ¶ 7.


    
                                                                                                    Summer 2008, Vol. 5 No. 2

both the majority and minority intimated that the totality of                held that the school district could not discharge an employee
the circumstances could yield a situation where an employer’s                solely on the basis of absenteeism or inability to work when that
overall actions surrounding its albeit legitimate lawsuit against            absence or inability to work was directly related to an allowed
the employee nevertheless evidence retaliation. Third, public                temporary total disability claim for which the employee was
employers must remain mindful of federal law. Title VII case                 receiving workers’ compensation benefits. In Bickers, the Ohio
law in the Sixth Circuit has not directly addressed the situation            Supreme Court clarified that Coolidge should be read far more
in Temesi. Under Title VII, generally, retaliation includes a ma-            narrowly than it perhaps appeared. The Court limited the Bick-
terially adverse action by the employer, which would dissuade                ers holding so that it only affects cases that require interpreta-
a reasonable employee from making or supporting a charge of                  tion of “good and just cause” as used in R.C. 19.16, the tenure
discrimination.9 If a court finds the employer’s lawsuit to meet             provision under which the teacher in Coolidge was terminated.12
that standard, then, regardless of Ohio law, the employer may                According to Bickers, for employees not covered by § 19.16
face a lawsuit in federal court. Ultimately, while Temesi does not           – i.e., the vast majority of state employees – the General As-
bar employer lawsuits in response to claims of discrimination, it            sembly made the policy choice that R.C. 12.90, the workers’
is an option that should be considered sparingly.                            compensation retaliation statute, is the exclusive remedy.1

SUPREME COURT NARROwS REACH OF ITS                                                                                 JAMES A. HoGAN
PRIOR wORkERS COMPENSATION RETALIATION                                                                    ASSiStANt SEctioN cHiEF
OPINION.
                                                                                                          JAck W. DEckER
   At the end of last year, in Bickers v. Western & Southern Life
                                                                                  PRiNciPAL ASSiStANt AttoRNEy GENERAL
Ins. Co.,10 the Ohio Supreme Court narrowed its earlier decision
in Coolidge v. Riverdale Local School District.11 The Coolidge court

9
   See Burlington Northern & Santa Fe Ry. v. White, 58 U.S. 5, 68          12
                                                                               Bickers, 11.
(2006).                                                                      1
                                                                               Bickers, 17-25. Note that in Cordial v. Ohio Dep’t of Rehabilitation
10
    Bickers v. Western & Southern Life Ins. Co., 116 Ohio St.d 51, 2007-   & Correction, 2006-Ohio-25, the Franklin County Court of Appeals
Ohio-6751, 879 N.E.2d 201.                                                   held that Coolidge did not prevent the involuntary disability separation
11
    Coolidge v. Riverdale Local School Dist., 100 Ohio St.d 11, 200-      of a recipient of temporary total workers compensation benefits.
Ohio-557, 797 N.E.2d 61.


New SPBR Order Will Demand Prompt Case Preparation
    The State Personnel Board of Review (SPBR) recently began                    Our experience has been that these orders are being issued
issuing the following standard procedural order in all disciplin-            within 60 days of the appeal being filed. SPBR Executive Di-
ary appeals.                                                                 rector James R. Sprague has indicated the purpose of instituting
    “The following is hereby ORDERED:                                        this practice at the outset of an appeal is to facilitate the expedi-
    1) All potential witness lists shall be exchanged between                tious administration of an appeal with the goal of shortening the
       the parties within 28 days prior to the first scheduled               time between the filing of a notice of appeal and the issuance of
       record hearing.                                                       the Board’s final order.
    2) All documents shall be sequentially numbered by the                       Paragraph one of the order expands upon a requirement set
       Appellee and sequentially lettered by the Appellant,                  forth in the Ohio Administrative Code that until now had been
       and shall be exchanged within 28 days prior to the first              triggered when a party served a written request for a witness list
       scheduled record hearing.                                             on his or her opponent. The new paragraph, however, eliminates
    3) And for all disciplinary appeals, the Appellant is to pro-            the requirement that a party serve the opposing party with a
       vide and exchange all disparate treatment evidence with               request for a witness list.
       the Appellee within 30 days of the date of this order.                    Paragraph two of the order imposes an additional requirement
    4) Any and all procedural defects and jurisdictional bars                not presently provided for in the Ohio Administrative Code. In
       shall be filed with this Board and opposing party/coun-               addition to the parties providing each other with a list of documents
       sel within 30 days of receipt of this order, or they will             upon request within 28 days prior to the first scheduled record
       not be considered by this Board.”                                                                                     CONTINUED...


                                                                                                                                                 
 Employment Law News

hearing, the parties must now physically exchange their documents      stage. In order to achieve this, it will be essential that our clients
and sequentially number and letter them 28 days prior to the first     promptly complete the initial Case Preparation Questionnaire and
scheduled record hearing.                                              return it and all documentation to the Attorney General’s Office.
    Paragraph three of the order now requires an appellant-em-         One of the most frequently occurring jurisdictional issues involves
ployee to provide the appellee-employer with and exchange all          the question of whether an employee is classified or unclassified.
disparate treatment evidence within 0 days of the procedural          If the employing agency is claiming an appellant is unclassified,
order. The prior practice of the Board has been that only upon re-     such notice must be provided to the Board along with the legal
quest of the appellee-employer would a procedural order be issued      basis for such a claim within this 0 day time frame.
directing the appellant-employee to provide disparate treatment            Frequently, state employers will become aware of a new SPBR
evidence to appellee within 1 days of the order (or at least 7 days   appeal before the paperwork is received by the Employment Law
prior to the record hearing if the record hearing was scheduled        Section. In such instances, especially given the new deadlines
for a date less than 1 days from the date of the Board’s order).      mentioned above, it would serve the appellee-employer well to
An appellant’s failure to comply with the 0 day deadline would        notify the Section Chief of the Employment Law Section of the
sometimes result in the exclusion of disparate treatment evidence      action, and begin gathering background information for use in re-
being considered by the administrative law judge.                      sponding to the Section’s Initial Case Preparation Questionnaire.
    Paragraph four of the order is viewed by this office as po-        By so doing, the necessary information would be available to the
tentially the most problematic requirement. As applied to the          assigned Assistant Attorney General at a much earlier time.
appellee-employer, any potential jurisdictional bars facing an             The State Personnel Board of Review is considering extend-
appellant-employee now must be raised and filed with the Board         ing the time for raising any jurisdictional issues to 5 days. Al-
by appellee within 0 days of receipt of the initial procedural or-    though welcome, this additional time would still present a time
der, or they will not be considered by the Board. Historically, a      crunch.
jurisdictional issue could be raised at any time during the course         Your assistance in meeting the challenges raised by the
of the appeal. Arguably, assertions that the SPBR lacks juris-         Board’s recent procedural order is appreciated and will assist this
diction to hear a case can be made not only before the Board, but      office in aggressively and effectively presenting our clients’ cases
in any subsequent court proceedings.                                   to the Board.
    This completely new requirement makes it critically important
                                                                                                   JoSEPH N. RoSENtHAL
that the Assistant Attorney General assigned to each appeal be
                                                                                           ASSociAtE AttoRNEy GENERAL
substantively conversant with the facts of a case at a very early



Proposed New FMLA Regulations Undergoing Review
    In February 2008, the Department of Labor released a               months of employment need not be consecutive. The proposed
lengthy summary of proposed changes to regulations interpret-          regulations require an employer to look back for a period of five
ing the Family and Medical Leave Act (FMLA). While a sig-              years to determine if the employee has been employed for a total
nificant portion of the comments are organizational in nature,         of twelve months. Twelve months of employment, interspersed
or seek to clarify ambiguous language in the regulations, several      over the course of five years, will constitute 12 months of service
proposed changes are substantive in nature. This review is by no       for FMLA eligibility purposes.
means an exhaustive list of the proposed changes; it simply ad-            On complicating factor is that employers are only required to
dresses some of the more significant proposals likely to affect a      retain employment records for a period of three years under the
large number of employees and employers with respect to quali-         FMLA. The proposed changes do not increase this retention
fication under and administration of the FMLA.                         requirement; but place the burden on employees to provide doc-
ELIGIBLE EMPLOYEE                                                      umentation or other evidence of employment beyond the three
    The proposed regulations expand the scope of who quali-            years of records retained by the employer. This gap in years be-
fies as an “eligible” employee. Under the current regulations,         tween the required look back period and the document retention
an employee who has worked for twelve months and for 1,250             requirements, along with ambiguities as to what documentation
hours may be eligible for leave under the FMLA. The twelve             will suffice, and what information can be used in lieu of docu-
                                                                       mentation, is likely to cause uncertainty.
                                                                                                                        CONTINUED...

  
                                                                                            Summer 2008, Vol. 5 No. 2

SERIOUS HEALTH CONDITION                                               FMLA balances. The proposed regulations change these two-
    One of the most confusing aspects of the FMLA has been             day deadlines to five days, giving the employer a better opportu-
the definition of a “serious health condition.” The existing reg-      nity to assess an employee’s eligibility and qualification, and to
ulations have six separate definitions for a serious health con-       implement necessary payroll changes accordingly.
dition. However, the DOL has not proposed any changes to
                                                                       CONTACT wITH EMPLOYEE’S HEALTH CARE
these definitions, primarily because it is unsure how to change
                                                                       PROVIDER
the definitions without affecting Congressional intent of what
                                                                           Another significant change proposed by the new regulations
conditions should and should not be covered.
                                                                       involves the information contained in an FMLA certification.
INTERMITTENT LEAVE                                                     Under the current regulations, when an employee who presents
    Another area that has caused significant confusion in terms        a certification that the employer finds to be unclear, ambigu-
of administering FMLA leave is employees’ use of intermittent          ous or incomplete, the employer must ask the employee to go
leave. While the proposed changes do not establish a minimal           back to his or her health care provider and complete or clarify
increment of time in which intermittent leave can be taken, they       the questionable information. The employer could also, with
do require an employee to make a reasonable effort (as opposed         an employee’s consent, use its own health care provider to con-
to an attempt) to schedule leave so as to minimally disrupt their      tact the employee’s health care provider to obtain the necessary
employer’s operations. Despite this change in language, further        information. The new regulations, however, permit an employ-
clarification and guidance with respect to administration, usage       er to contact the employee’s physician directly for purposes of
and tracking of intermittent leave to minimize abuse may be            authenticating medical certification paperwork. An employer
necessary.                                                             could also contact the health care provider for purposes of clari-
                                                                       fying an FMLA certification, so long as such communication is
PRE-ELIGIBILITY LEAVE
                                                                       in compliance with HIPAA regulations. The proposed changes
    The proposed regulations also clarify that, if an employee is on
                                                                       also include physicians’ assistants in the list of health care pro-
leave at the time they become eligible for FMLA leave, the period
                                                                       viders that can be used under the FMLA.
of leave preceding their eligibility for FMLA cannot retroactively
be designated as FMLA leave; only the time taken after eligibility     MILITARY LEAVE
can be designated as FMLA leave.                                           Earlier this year, Congress passed legislation expanding the
                                                                       FMLA to cover relatives of certain members of the military. As
OVERTIME
                                                                       of January 2008, employees are permitted to take 26 work weeks
    The existing regulations treat mandatory, voluntary and “as
                                                                       of leave in a 12-month period to care for a covered service mem-
needed” overtime differently. Proposed changes make the rule
                                                                       ber who is the employee’s parent, child, spouse or next of kin,
much simpler: if an employee would be required to work over-
                                                                       who is undergoing medical treatment, recuperation, therapy,
time if it were not for their FMLA certification, the time that
                                                                       outpatient care or is otherwise temporarily disabled for serious
the employee is unable to work because of his or her FMLA
                                                                       injury or illness that the covered service member incurred in the
condition is counted against the employee’s FMLA leave bal-
                                                                       line of duty. Once the DOL adopts corresponding regulations,
ance. In other words, if an employee is scheduled to work an
                                                                       military family leave will also be available for qualifying exigen-
eight-hour shift of overtime in addition to the regular eight-hour
                                                                       cies that arise out of active duty service in support of contingency
day, but cannot do so because his FMLA certification restricts
                                                                       operations. This provision will provide employees with 12 weeks
his work to 0 hours per week, he will have that eight-hour shift
                                                                       of leave during a 12-month period for qualifying exigencies re-
of overtime he declines counted against his FMLA balance.
                                                                       lated to active duty/call or order to active duty of an employee’s
However, employers are required to ensure that an employee’s
                                                                       parent, spouse or child in support of a contingency operation.
selection for overtime duty is not unfairly discriminatory against
                                                                           The proposed regulations are significant, and attempt to
FMLA-qualifying employees.
                                                                       clarify numerous areas of ambiguity contained in the FMLA.
TwO-DAY VERSUS FIVE-DAY DEADLINES                                      Hopefully, such changes can be adopted and better align the
   Many of the current regulations provide for two-day dead-           administration of the act from the employer’s perspective while
lines -an employer has two days to notify employees of whether         protecting employees’ rights under the FMLA.
they are eligible for FMLA, two days from receipt of certifica-
                                                                                                       PooJA ALAG BiRD
tion to notify employees if they qualify for FMLA, and two days
                                                                                           ASSiStANt AttoRNEy GENERAL
to notify employees that their absences will count against their


                                                                                                                                       
    Employment Law News

Disparate Impact: Does Your Agency Maintain Employment Practices that are
“Fair in Form but Discriminatory in Operation”?

    There are two principal means of proving employer discrimi-                 In a typical disparate impact case, each party will submit sta-
nation under Title VII of the Civil Rights Act and parallel Ohio            tistical evidence and the prima facie case will depend upon the
law: disparate treatment and disparate impact. In the overwhelm-            relative quality of the opposing statistical conclusions. Evidence
ing majority of employment discrimination cases that our Section            will not satisfy the prima facie burden unless it is statistically sig-
litigates, plaintiffs attempt to prove discrimination by showing            nificant. Statistical significance is a measure of the probability
disparate treatment. The purpose of this article is to shed light on        that a disparity is not simply due to chance rather than any other
the lesser-used means of proving discrimination and the types of            identifiable factor (i.e. a protected classification).
policies that may potentially result in a disparate impact.                     What types of policies should you be on the lookout for?
    Disparate impact theory emerged within the first decade of              Policies which have been found to result in a disparate impact
the enactment of Title VII. In the seminal case of Griggs v.                can generally be broken down into several major categories:
Duke Power Co.,1 the Supreme Court held Title VII prohibits                     1) Height and weight requirements which disparately impact
employment practices that are “fair in form but discriminatory                      women. See Dothard v. Rawlinson,  U.S. 21 (1977),
in operation.” Under a disparate impact theory of discrimination                    Vanguard Justice Soc. v. Hughes, 71 F. Supp. 670 (D. Md.
(also referred to as adverse impact, disparate effect, unintention-                 1979).
al discrimination, or statistical discrimination), “a plaintiff need            2) English-only speaking requirements which disparately
not show that a defendant intended to discriminate, but must                        impact Hispanics and other non-English speakers. See
instead prove that a particular employment practice, although                       Maldonado v. City of Altus,  F.d 129 (10th Cir.
neutral on its face, has produced a significant adverse effect on                   2006), EEOC v. Synchro-Start Prods., Inc., 29 F. Supp. 2d
a protected group to which the plaintiff belongs.”2 Thus, a dis-                    911 (N.D. Ill. 1999).
parate impact theory of discrimination is unique in that proof of               ) Recruitment advertising limited to a certain geographic
discriminatory intent is not required.                                              area with a large percentage of one ethnic/racial group.
    An employee establishes a prima facie case of disparate im-                     See Alexander v. Local 49, Laborers’ Int’l Union of N. Am.,
pact discrimination “by identifying and challenging a specific                      177 F.d 9 (6th Cir. 1999), United States v. City of War-
employment practice, and then showing an ‘adverse effect’ by of-                    ren, 18 F.d 108 (6th Cir. 1998).
fering statistical evidence ‘of a kind or degree sufficient to show             ) Written examinations and tests. See Connecticut v. Teal,
that the practice in question has caused the “adverse effect” in                    57 U.S. 0 (1982), Washington v. Davis, 26 U.S.
question.’” The defendant can attempt to disprove the basis of                     229 (1976), Albemarle Paper Co. v. Moody, 22 U.S. 05
plaintiff’s prima facie case, usually by demonstrating there is no                  (1975).
adverse impact on the protected classification, or by showing                   5) Policies limiting employment opportunities based on
there is no causal connection between the adverse impact and                        prior “bad behavior” which disparately impacts certain
the challenged policy. Or, the defendant can admit the suf-                         protected groups. See New York City Transit Authority
ficiency of the plaintiff’s prima facie allegations and argue the                   v. Beazer, 0 U.S. 568 (1979) (rule against employing
employment practice has a “manifest relationship to the employ-                     former heroin users); Gregory v. Litton Sys., Inc., 16 F.
ment,” or legitimate business reason. Once the defendant has                       Supp. 01 (C.D. Cal. 1970), aff’d as modified, 72 F.2d
stated the legitimate business reason, the burden shifts back to                    61 (9th Cir. 1972) (disparate impact on African-Ameri-
the plaintiff to show either the stated reason is a pretext for dis-                cans of employers’ inquiries about arrest records), Wal-
crimination, or there exists an alternative employment practice                     lace v. Debron Corp., 9 F.2d 67 (8th Cir. 197) (dis-
that would achieve the same business ends with a less discrimi-                     parate impact on African-Americans of policies limiting
natory impact.5                                                                     employment opportunities of employees subject to wage
                                                                                    garnishment), Green v. Missouri P.R. Co., 59 F.2d 1158
1
  01 U.S. 2, 1 (1971).
                                                                                    (8th Cir. 1977) (disparate impact on African-Americans
2
  Kovacevich v. Kent State Univ., 22 F.d 806, 80 (6th Cir. 2000).

  Id., quoting Scales v. J.C. Bradford & Co., 925 F.2d 901, 908 (6th Cir.
                                                                                    of policies limiting employment opportunities because of
1991).                                                                              prior criminal convictions).

  Isabel v. City of Memphis, 0 F.d 0, 11 (6th Cir. 2005).                                                                CONTINUED...
5
  Id.
    10
                                                                                                 Summer 2008, Vol. 5 No. 2

   6) Minimum education requirements. See Griggs, supra,                    ing Struggle of Pregnant Workers, Professor Joanna Grossman of
      and United States v. Georgia Power Co., 7 F.2d 906 (5th             Hofstra Law School chalks up the increase to both a rise in the
      Cir. 197).                                                           incidence of pregnancy discrimination and a greater awareness
   This should not be considered an exhaustive list of disparate            by employees of their legal rights. Though women are becom-
impact categories. But, when reviewing policies in these areas, be          ing more aware of their rights, confusion, it seems, is one of
especially aware of the potential that they could disparately im-           the driving forces behind the increased number of PDA-based
pact employees who are members of a protected classification(s).            charges.
Remember that no discriminatory intent is necessary; all that is                Though the PDA does provide certain protection to pregnant
required is a discriminatory effect.                                        women, it is not a limitless protection. In essence, the PDA
                                                                            guarantees pregnant women two separate rights. The first is the
                                 DREW c. PiERSALL
                                                                            right of equality. Essentially, a pregnant woman is protected
                     ASSiStANt AttoRNEy GENERAL
                                                                            against being treated adversely because of pregnancy. Legally,
                                                                            employers may fire, lay off, or refuse to hire pregnant women,
                                                                            but if the employer took the action because of the pregnancy,
                                                                            it is unlawfully discriminatory. It is the employee’s burden to
                                                                            show that the adverse job action was taken against a pregnant
2008 Has Given Birth to a Slew of                                           employee because of her pregnancy. Establishing that an em-
Pregnancy Discrimination Claims                                             ployer took adverse action against an employee because of her
    As a thirty-something, it seems like most, if not all of my             pregnancy, rather than for legitimate reasons, such as tardiness
friends are pregnant or actively trying to get pregnant. It is the          or work performance, can often prove difficult.
topic of dinner conversation, coffee talk, and phone dates. And                 Moreover, the PDA does not require employers to accom-
with the marked surge in pregnancy discrimination claims in                 modate the actual needs of pregnancy. Accordingly, as Professor
the American workplace, it seems as if women are ramping up                 Grossman indicates, an employer can effectively legally force a
their knowledge of their rights and actively exercising them.               pregnant woman to go on unpaid leave or fire her for temporary
    The Wall Street Journal’s March 2008 report1 of a 1 percent            incapacity (if she is ineligible for FMLA or a disability benefit) if
increase (to 5,587) in pregnancy discrimination claims with the             she is unable to, e.g., perform heavy lifting as a requirement of her
Equal Employment Opportunity Commission (EEOC), de-                         job, even if her doctor forbids such lifting. As Professor Gross-
spite a decline in the birth rate over the past decade, spurned a           man accurately summarized, many courts have upheld employer
flurry of blogs, articles, and speculation as to the reason behind          policies restricting the availability of light-duty assignments to
the increase.2 The Wall Street Journal also reported that the               employees injured on the job, thereby denying those positions to
EEOC received 20,00 pregnancy-bias inquiries at its call cen-              pregnant women with a temporary need for light duty. The first
ter last year, not including thousands of walk-ins asking about             clause of the PDA does very little to protect pregnant women
the same topic at fair employment offices. An advocacy group,               during periods of actual disability.
9to5, National Association of Working Women, is also seeing                     The second right established under the PDA is the right of
an increase in pregnancy bias calls on its hotline. But why the             pregnant women, while pregnant and unable to work, to be treat-
sudden surge?                                                               ed the same as other temporarily disabled employees. In Califor-
    The Wall Street Journal speculated that the increase reflects           nia Federal Savings v. Guerra, 79 U.S. 272 (1987), the United
not only changing demographics and new activism among                       States Supreme Court explained that employers must provide
mothers, but continuing confusion about the federal Pregnancy               the same level of benefits to pregnant women that they provide
Discrimination Act (PDA) and the type of protection it pro-                 for other temporarily-disabled employees. The Court further
vides. Some employees erroneously believe they have a right to              explained that this requirement is only a “floor” for benefits, and
paid childbirth leave or that they are protected from adverse job           the PDA permitted an employer to provide preferential benefits
actions such as demotions, terminations or suspensions.                     for pregnant women. As such, companies are permitted to make
    In another report, A Marked Increase in Pregnancy Discrimi-             special accommodations for pregnant women that they do not
nation Claims and Other Key Developments Illustrate the Continu-            make for other temporarily disabled individuals. However, as
1
  The article can be accessed at http://www.wsbt.com/news/
                                                                            Professor Grossman warns, if the employer chooses not to pro-
health/17091216.html.                                                       vide any leave for its employees with temporary disabilities, the
2
  Charge statistics are available at http://eeoc.gov/stats/pregnanc.html.                                                    CONTINUED...

                                                                                                                                           11
 Employment Law News

PDA does not require that it provide any leave for a pregnant         Sexual Harassment of Men by Women
woman. Indeed, she could even be fired for missing work. At               It may not be surprising to many that, through heightened
this time, only two states, California and Washington, require        awareness and training in the workplace, sexual harassment
paid maternity leave.                                                 claims in general have been on the decline for the past decade.
   The PDA has even made its way onto the radar screen of the         Despite this, the number of charges filed by men as victims is on
U.S. Supreme Court. On June 2, 2008, the Court granted a             the rise.1 In 2007, 16 percent of the sexual harassment charges
petition for a writ of certiorari from a decision in the 9th Cir-     filed with the EEOC were brought by males claiming they were
cuit Court of Appeals, AT&T Corp. v. Hulteen. Before the pas-         victims of harassment. In 1997, men represented only 11.6 per-
sage of the PDA, it was lawful to award less retirement service       cent of the individuals filing sexual harassment charges. While
credit for pregnancy leave than for other temporary disability        these percentages include male-on-male harassment, many of
leaves. As discussed above, such a practice is now illegal. Each      these charges allege harassment by female bosses.
of the women in Hulteen had taken pregnancy leave prior to                One scenario involving a female boss “aggressor” against a
the enactment of the PDA and would have enjoyed more favor-           male subordinate recently played out in an Orlando, Florida fed-
able benefits or retirement opportunities if, at the time they left   eral courtroom. In Floeter v. City of Orlando , a female under-
AT&T, they would have been given service credit for the time          cover narcotics agent was promoted to Sergeant over the city’s
they were on pregnancy leave. They were not given such credit         police department narcotics unit. Floeter, a male undercover
and filed suit against AT&T to challenge its use of the facially      agent, alleged that the female Sergeant spoke to him and other
discriminatory service credit policy used to calculate employee       agents in a “decidedly sexual tone,” constantly made sexually ex-
pension and retirement benefits. The question for the Court is        plicit jokes and comments, and stared provocatively at his private
whether the PDA can be retroactively applied to pre-PDA (and,         parts and buttocks. He also alleged that the female Sergeant
consequently, then-legal) pregnancy leave policies.                   touched his buttocks and groin area, rubbed and groped him,
   The Employment Law section will keep you apprised of de-           simulated “lap dances,” and “humped” his leg. Floeter claimed
velopments in the Hulteen case and other major developments           his complaints about her behavior were ignored and the city
regarding pregnant employees as they occur.                           failed to take prompt remedial action. The case went before a
                              MEGAN H. BoiARSky                       jury, where after two days of testimony, the parties settled for an
                   ASSiStANt AttoRNEy GENERAL                         undisclosed amount.
                                                                          Interestingly, the alleged misconduct by the female boss in the
                                                                      Floeter case, and many other female-on-male harassment cases,
                                                                      is not dissimilar from the traditionally bad behavior seen from
                                                                      the “typical” male boss-harasser, perhaps lending support to an
                                                                      assumption that, despite gender differences, workplace abusers
                                                                      do not look that different. As such, employers should be mind-
                                                                      ful not to discount or trivialize complaints by male employees
  AUTHOR/SECTION MEMBER BLOCK                                         against their female bosses and should refrain from resorting
                                                                      to potentially harmful stereotypes in administering their EEO
                                                                      polices and harassment awareness and training programs.

                                                                                                    JuLiE M. PFEiFFER
  THE EMPLOyMENT LAW NEWS,                                                       SENioR ASSiStANt AttoRNEy GENERAL
  iNcLuDiNG AN ARcHivE oF PASt iSSuES, iS
  AvAiLABLE oN tHE AttoRNEy GENERAL’S                                 1
                                                                          See EEOC Charge Statistics at www.eeoc.gov/stats/harass.html
  WEBSitE At WWW.AG.StAtE.oH.uS                                       2
                                                                          No. 05-cv-00 (M.D. Fla. Amended Comp. filed June 9, 2005).




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