About WISHRM

by Bob Gregg
rgregg@boardmanclark.com
 
Boardman & Clark Law Firm
Wisconsin SHRM Legislative Sponsor
www.boardmanclark.com
 
 
LEGISLATIVE AND ADMINISTRATIVE ACTIONS
 
Private Sector Employers Must Provide EEO-1 Workforce Data to EEOC by March 31.
The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more to file the EEO-1 report.  The EEO-1 report provides employment data by race/ethnicity, gender and job categories.  The filing of the EEO-1 report is not voluntary and is required by federal law.  The EEOC’s EEO-1 Survey website at https://www.eeoc.gov/employers/eeo1survey contains reference documents such as a EEO-1 User’s Guide, sample form, instructions, FAQs, a fact sheet and a EEO-1 Job Classification Guide. 
 
RECENT ARTICLES
 
The following new Labor and Employment articles are available at boardmanclark.com Reading Room or by request:
 

1. NLRB Pendulum Begins to Swing Back – Doug Witte
2. Leaves of Absence as Disability Accommodation – Jennifer Mirus
3. Sexual Harassment – The #METOO Explosion – Bob Gregg (accompanies this Update)

 
Day On The Hill – The Wisconsin SHRM Legislative Conference.  The Wisconsin SHRM Legislative Conference is February 21, 2018 in Madison.  Important legislative insight, legal developments and a chance to meet the lawmakers.  Registration information can be found at WISHRM.org. 
 
 
LITIGATION
 
Harassment Is The Ongoing Topic
 
There has been an explosion of sexual harassment allegations in both the press, and in complaints to employers.  Famous media figures, politicians, judges, executives, and public and corporate managers have suddenly had careers damaged or ended due to their improper behaviors.  Harassment is certainly not new.  Yet now there is a new environment, new support and motivation to come forth.  Organizations, Congress and Legislatures are paying attention.  Expect New Developments.  Congress and state legislatures are taking a renewed interest; both in policing their own bodies, and in considering legislation to address the “new” concern.  Expect new laws and expanded liabilities, as organizations which once seemed blasé about the issue are now scrambling to expand coverage, reverse prior practices, create new liabilities, and make special concessions in order to show they take harassment seriously.  The article on Sexual Harassment – the #ME TOO Explosion accompanies this Update, as more advice on being prepared.  
 
Carving Out Special Exceptions.  Epic System v. Lewis is one of the most significant matters pending before the Supreme Court.  It involves a company’s ability to limit rights and force employees to accept individual arbitration for all employment issues, rather than using courts on class actions.  HOWEVER, Sexual Harassment publicity and concerns are taking companies in a different direction.  Congress and companies are moving to expand rights for sexual harassment.  The recent tax law penalized secret/confidential settlements of sexual harassment complaints.  Microsoft has just eliminated its requirement for arbitration when it comes to sexual harassment matters, after revelation of improper behaviors. 
 
Judge Retires Due To Sexual Harassment Allegation.  A Federal Judge, Alex Kozinski, 9^th Cir., announced his immediate resignation following allegations of sexually inappropriate behaviors toward staff.  Kozinski stated that he had no intent to make others feel uncomfortable, “I’ve always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike.  In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace.”  [For more insight on the Judge’s statement, request the seminar Is It Humor or Harassment, or the Boardman & Clark article It Was Just a Joke.  You will find that “I Was Just Joking” is the worst excuse you can make as a manager or professional.  It actually increases liability.  The sexual harassment laws have been in effect for decades.  It is “inexcusably deliberate disregard” of the law to not be aware and to still be engaging in this “humorous” behavior in the workplace.] 
 

 
Workplace Romance Gone Sour – Breakup Results In Discharge.  A manager broke off a two-year consensual romantic relationship with her supervisor.  Within a few months she went from excellent evaluations to being placed on a Performance Improvement Plan for a $250 expense overage, and then being fired.  She filed Title VII quid pro quo harassment and retaliation complaints.  The court found valid evidence to support the case.  The timing, so soon after the breakup, was suspicious (“temporal proximity”).  Several other employees had frequent and larger expense overages with no critique at all.  The supervisor had expressed a deal of upset over the breakup, and when asked by others about why he criticized her work, stated “why shouldn’t I, after the hell she put me through this summer” (during the breakup).  Pung v. Regus Mgt. Group LLC (D. Minn., 2018). 
 
Joint Employment Expanded To Third Party With No Direct Contractual Relationship – But Supervised Construction Site.  The joint employment concept has often been used to cover leased or contracted employees.  Both the leasing/placing employer and the company which leased/contracted for the services can be liable for harassment or other discrimination occurring at the place the employees are placed.  In Salvat v. Construction Resources Corp. (CRC) (S.D. NY, 2018), the court went an extra step to hold yet another entity liable as well.  Empire Outlet Bldrs. (EOB) was a general contractor for a construction project.  EOB sub-contracted for CRC workers to build the project.  EOC also brought in LP Corp. (LPC) to manage the subcontractors on the site.  LPC had no contract with CRC or its workers.  A female CRC construction worker was sexually harassed by another CRC worker, who took pictures of her in the porta-john, through the broken door, showed them to others, and made repeated sexual advances.  LPC provided the porta-johns, and had day-to-day direct supervision of CRC’s workers, including communication with CRC’s union representatives.  LPC did not repair the broken door or address the advances, allowing the unsafe-harassing situation to continue.  After she continued to complain to LPC and CRC, the female worker was fired.  She filed Title VII claims against all entities.  The court ruled that though LPC had no direct contract with CRC, it was EOB’s agent in control.  LPC executed sufficient control over the workers, the equipment/facilities and the supervision to be ruled to be a Joint Employer for Title VII liability. 
 
Other Discrimination Cases
 
Sex and Race
 
Discrimination At The Top - $5 Million Settlement.  One usually thinks of discrimination occurring at lower levels of an organization, rather than affecting executives.  However, a number of female and African-American Vice Presidents and Managing Directors of a large investment firm will receive $5 million for unequal pay claims in a settlement reached with the OFCCP.  An OFCCP audit concluded White male

 
Vice Presidents and General Managers were paid substantially more for the same work. OFCCP and State Street Corp. (2018). 
 
Disability
 
Not Qualified For The Job – But Still Has Case For Interviewer’s Improper Medical Questions.  A person who cannot do the job is not a “qualified person with a disability,” and has no case, no damages under the ADA for not being hired.  The employer is clean.  However, a supervisor can blow this protection by improper inquiry.  The ADA has a separate provision which strictly prohibits any inquiry into medical conditions (except a professional medical evaluation after the job offer).  In Mir v. L-3 Communications Integrated Syst. (N.D. Tex., 2017).  The rejected applicant had a severe hip condition and walked with a pronounced limp and used a cane.  The court found that he was not qualified to do the essential function of the mechanical engineering position due to his lack of the required “NC programing knowledge” (not due to his hip condition).  However, the hiring manager violated the non-inquiry ADA provision.  On the walk from the receptionist to the interview room the manager asked several questions about his ability to walk.  The applicant answered, talking about his hip operations and condition.  During the interview the manager made more inquiries about when the condition began and about the short-term and long-term prognosis of the condition.  The court ruled that the plaintiff could still pursue a case for violation of the prohibited inquiry section of the ADA, and seek damages for distress, anxiety, and attorneys’ fees. 
 
Multiple Psych Exams Warranted In Spite Of Repeated Fitness For Duty Opinions.  An office administrator began to exhibit unusual “aggressive, abrasive and threatening” behaviors and sometimes “mumbled incoherently.” A number of other employees complained.  The employer sent her for a Fitness for Duty evaluation.  The doctor opined that there “might be” a bipolar condition, but that she was able to return to work.  The behaviors reoccurred.  She was again placed on leave and sent to evaluation.  The same fitness to return was given.  The behavior reoccurred and worsened.  Other employees expressed concern for physical safety.  Ultimately there were four such evaluations, each followed by return to work, and more overtly disruptive behaviors, even screaming at people and rude, angry, threatening behavior.  The fifth evaluation resulted in an unfit for duty conclusion, and she was not allowed back on the job.  She sued, claiming the repeated exams, after the original fit to return to work opinion, violated the ADA; the employer had no right to subject her to continual medical scrutiny.  The court disagreed, and granted Summary Judgment to the employer.  The ADA allows evaluations which are “job-related and consistent with business necessity.”  Continuing and reoccurring disruptive behavior, and complaints by other employees warranted continuing evaluations.  A fit to return evaluation does not immunize one from all future evaluations.  Reoccurring problems warrant reoccurring evaluations.  Painter v. Ill. D.O.T. (7^th Cir., 2017). 
 

 
Obesity Is Not A Disability Without Another Underlying Causative Condition.  The issue of whether obesity itself constitutes a disability, or perceived disability, has been a matter of confusion, with courts reaching conflicting conclusions.  It is becoming clearer that obesity on its own is not a disability.  There must be an underlying condition which causes obesity.  Richardson v. Chicago Transit Authority (N.D. Ill, 2017) involved a 594 lb. bus driver who was removed from service because he could not do hand over hand turns due to the size of his stomach interfering; could not consistently keep from having his foot on both gas and brake at the same time, due to the size of his legs, and could not effectively do inspections pre-trip or for problems during a trip due to his size.  He sued, claiming he should have been accommodated due to his obesity disability.  He claimed no underlying factors, only the “condition of obesity.”  The court ruled that “Not all abnormal physical characteristics” are disabilities under the ADA.  The EEOC’s ADA Guidance distinguishes between conditions that are impairments and physical characteristics that are not impairments, and that weight is a “physical characteristic.”  There must be some other additional medical condition which creates obesity; that condition would be the disability. 
 
Family and Medical Leave Act
 
Timing – Policy Violations, Not Hemorrhoids, Was Cause Of Discharge.  A discharged second shift supervisor claimed he was fired due to requesting FMLA.  He called in to report he needed a sudden hemorrhoidectomy and would not be coming to work until recovered.  He was notified of his discharge a few days later.  The week prior to the call-in it was discovered that the supervisor had run out of gas on the way to work, called an on-duty employee to spend significant time to bring gas.  He instructed the employee to not clock out, and did not either report this or adjust the time record, as required.  In fact, he used his supervisor badge to let himself in, and have the employee “sneak” in the manager entrance to avoid any detection of the time out of the facility.  He was confronted with this, and admitted he had similarly used employees for personal reasons several other times.  That same day, following this due process meeting, managers decided to terminate the employment.  The call-in regarding need for FMLA occurred the next morning.  The court ruled that there could be no FMLA nor disability discrimination, since the firing decision was made before he called in for FMLA and before management even knew he had hemorrhoids.  Ennin v. CNR Ind. LLC (7^th Cir., 2018).  A crucial factor in this decision was the managers documenting the termination decision – then, at the time.  An after-the-fact documentation would have seemed to be a pretext, and the decision might have been different.  Documentation is worth the paper (or email) it is printed on.  A “verbal reprimand” or an oral decision is not provable.  So tangible decisions should be immediately documented.  Even if the email states: “today we decided to terminate Jack’s employment, though we are delaying telling him until Friday – since it is more convenient for payroll purposes.”  It documents the actual date of the decision.  Also see the article We Have the Straw that Broke the Camel’s Back, But Where is the Rest of the Camel?, www.boardmanclark.com. 
 
 
Labor Arbitration
 
Dueling Doctors’ Notes Results In Discharge.  An employee was discharged for dishonesty.  He submitted a note from his doctor stating that he needed an accommodation of limitation to an 8-hour shift, with no overtime.  Unfortunately, for the employee, the doctor had also mailed his note to Human Resources – to help facilitate the employee’s return to work.  The actual doctor’s note made NO mention of any 8-hour limit, nor of overtime.  The employee had added those on his own.  This warranted discharge for falsification.  In Re Georgia Pacific Consumer Op. and USPFRM Service Workers (2017).  
 
Loafing.  An employee grieved termination for loafing on the job.  However, a security camera showed him playing computer games, smoking (in violation of policy), and going out for a Burger King run, all on work time.  The employee’s job was self-directed, so trust was crucial.  The Arbitrator ruled that the intentional and blatant violations warranted discharge, even though the employee had worked 48 years for the company.  In Re Kloeckner Metals Corp. and Teamsters Local 100. 
 
 
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For additional information, see www.boardmanclark.com.  The Reading Room has past issues of the Employment Law Update.  Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter. 
 
 
 

 
Sexual Harassment – The “#METOO” Explosion
 
By Bob Gregg
Boardman & Clark Law Firm
 
There has been an explosion of sexual harassment allegations in both the press, and in complaints to employers.  Famous media figures, politicians, executives, and public and corporate managers have suddenly had careers damaged or ended due to their improper behaviors.  Harassment is certainly not new.  Yet now there is a new environment, new support and motivation to come forth.  Organizations, Congress and Legislatures are paying attention.  Enhanced policies, practices and new laws and liabilities are coming. 
 
Why Now?  Why has there been such a public explosion of sexual harassment reports in the past year?  Thousands of people, male and female, are suddenly coming forward to report “METOO” incidents. 
 
Perhaps it is not such a “sudden explosion” of reports.  What may be “sudden” is the press attention on high profile people, and the resulting attention to sexual harassment at all levels.  Harassment has been far too common for far too long.  A good level of individual reporting of incidents may have been there all along, it was just not noticed without national media attention.  Let a major star or movie executive be charged – NOW the press pays attention, and it seems like a sudden development. 
 
Why Else?  Many of the reports previously made were rejected, and people learned that any action was unlikely, or unavailable.  Actresses, actors, and a number of others coming forth are often Independent Contractors, not employees.  So media and production executives, agents and fellow actors are not “employers” and usually cannot be sued, because they are outside of the employment laws.  Anything short of actual criminal physical assault may not be actionable at all.  There is nowhere to go. 
 
Even physical groping, when reported, may only be a “fourth degree misdemeanor.”  A report to the police often goes nowhere.  In the priorities between homicide, and major felonies, the misdemeanor gets lost, or even turned away.  No employment protection – no criminal actions.  No protection from retaliation. 

Congress created a “complaint” process for itself full of delays and red tape – designed more to discourage complaints, and frustrate the victims, and bury any real investigation or action, while protecting the politicians.  People learned it was usually a dead end effort. 
 
When owners, CEOs or “key” people of organizations are charged, the issue has often been ignored or sidelined to protect the “key players.”  Pursuing it further can end the career of someone who complains. 
 
A survey of 600 corporate directors found that harassment and work environment are rarely concerns at board meetings.  The majority of female directors reported getting a dismissive reaction when they tried to raise the issue.  Thus, executives and board members learn in the press about what was occurring in their own organizations, and have to react, instead of pro-act.  The corporation “managed by crisis,” rather than forethought and responsibility to employees and to itself. 
 
Men who complain about sexual harassment by women have routinely been disregarded by the police, and by their own organizations.  “What are you complaining about?” has been an all too standard response.  Also, and unfortunately, some employers focus their harassment policies on protecting women, and not on the “untraditional” incidents.  They give far less attention and credence when men complain, not understanding that the EEO laws protect all people. 
 
Far too many people have learned, from their own experience, or those of people they know, that complaining was ineffective, or worse, could result in retaliation – with no protection. 
 
People ask – “Well why didn’t they come forth sooner?”  Those are some of the significant reasons that people did not, or those who did simply get shunted into a corner, and were never really heard. 
 
Now there is social media.  Now there is a “movement,” and support, to get attention.  Now, finally, the press and organizations are paying attention, including those organizations which are not “employers,” and may not be covered by the employment laws. 
 
Expect New Developments.  Congress and state legislatures are taking a renewed interest; both in policing their own bodies, and in considering legislation to address the “new” concern.  Some are considering laws to cover the non-employment Independent Contractor or similar relationships.  There is a renewed interest in the Model Healthy Workplace Act.  Expect new laws and expanded liabilities. 
 
In many organizations sexual harassment seems all too common.  Yet in others it rarely arises and is quickly and effectively addressed.  What is the difference?
 
If your organization is one of the former, how do you change, and create effective practices to establish a Respectful Workplace?  If your organization is a Respectful Workplace, how do you continue and enhance that status in the light of current developments and upcoming laws and liabilities. 
 
Your Policies and Practices are Under Closer Scrutiny
 
Too many organizations which did receive complaints did not properly act.  Now prompt and effective action, or lack thereof, are getting much closer press and legal attention.  Unfortunately, too many policies and response practices are not designed to have priority and be effective.  Many supervisors do not know what to do; some cannot even tell you what the Anti-Harassment Policy covers, or what it says!  “Oh it’s somewhere in the handbook.  I’ll read it if I ever need to.”  Those supervisors can hardly be expected to promptly recognize and act on any sort of incident that falls below the overt criminal felony level – if that. 
 
Improper Investigation
 
Some organizations fail to address complaints.  However, there is now also a growing critique about “rush to judgment,” and unfairly “railroading the accused” without a fair process.  Unfortunately, this, too, has some credence.  When the press and public pressure is on, some organizations act hastily to beat the heat and bad publicity rather than give fair consideration.  Expect a number of challenges by those who have suffered overreaction or been unfairly discharged.  The same plaintiff’s attorneys who represent the “harassed” also zealously represent the “unfairly discharged harasser.” 
 
In the new climate even organizations which acted fairly and deliberately are going to be accused of the unfair discharge and “discrimination by investigation.”  So now is the time to reassess your practices to assure they are up-to-date and more than adequate to protect the rights of all parties involved.  The liability for improper investigation and improper discharge can be even greater than the harassment liabilities. 
 
Are You PREPARED?
 
Here is a checklist:
 
Anti-Harassment Policy. 
 
Is it current?  Courts have recently found a number of policies inadequate. 
 

• Comprehensive coverage of EEO categories.
• Emphasis to all employees (signed – not just somewhere in the pages of a thick Handbook).
• Given to all – temps, student/interns/seasonals, etc. (who are often the most vulnerable).
• Prohibits “inappropriate” behaviors – not “illegal harassment” (or you will always be verging on illegality) set the level well below “illegal,” to give space for correction – rather than discharge.
• Ease of reporting.
• Designated specific people/positions to report to (not “your supervisor” for a formal complaint).
• More than one way and location for reporting – to provide a way around “blockages.”
• Prompt action promise – with both an informal and formal option (not just “discipline/discharge” for every infraction – no matter how minor).
• Guarantee of no retaliation.

 
A policy is just a piece of paper.  Give it meaning and life: emphasis of its importance. 
 
More detailed Guidelines to back up the policy; work rules on inappropriate behavior. 
 
Training of all employees – real training.  The EEOC and other experts have opined that a computer/video/post-test taken by an employee, in a little room alone, is generally ineffective.  It is subject to inattention, test answers provided in advance, and may signal this shows the employer is “glossing” the issue as unimportant and pro-forma.  Short training of only an hour is ineffective.  It demonstrates the organization’s lack of concern.  It is a gloss, not a real effort to educate. 
 
Training of managers beyond the general all-employee program.  How to recognize, report and react to situations. 
 
Collateral policy coordination.  Policies intersect and reinforce each other.  The policies on computer/phone/electronic usage; workplace dating/nepotism/favoritism; conflicts of interest; dress code, boundaries with clients, etc. should coordinate with the harassment policy. 
 
Follow-ups to re-emphasize the training.  “One and done” is virtually designed to fade and fail over time.  Keep the message alive, in small doses over time (articles, clippings, short part of meeting agendas periodically).
 
Process & Action. 
Thorough review of the process for handling complaints. 

• Review of current process and protocols.
• Flexibility.
• Fairness to complainant and those complained about – non-discriminatory; due process. 
• Protocols for corrective action and for communicating findings of no improper behaviors. 
• Anti-retaliation protocols. 

 
Processes for handling even more sensitive issues:

• Child labor/juvenile workers complaints, and improper behaviors toward employees by these same juveniles.
• Students, patients, those with special vulnerabilities.

 
For more comprehensive information, request the Boardman & Clark articles Harassment Policy and Procedure; Restrictions on Workplace Romance and Consensual Relationship Policies; A Word of Caution About Investigating Employment Matters. 
 
Conclusion
 
Instead of asking “why now?” perhaps the question should be “why still?”  Why is this still going on after the anti-harassment laws have been in place for decades?  Why have many organizations seemed so laissez faire about harassment and abusive behaviors, and not made civil and respectful behavior a central part of their mission statement and culture?  Why do individuals continue to engage in actions they clearly should know are improper? 
 
We live in a world in which we are often unable to control events or outcomes.  However, we all have the full ability to control our own hands, our own mouth, our own gaze, our texting, and our own behaviors toward others.  Every organization should have that expectation and that requirement for all of its people.  Every organization should develop the policies, guidance, mission, education and commitment to assure that this occurs.  
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Bob Gregg, Boardman & Clark Law Firm in Madison, Wisconsin, has been professionally involved in employment and civil rights work for over 30 years.  He has designed the work and service environment policies and procedures of numerous employers, schools and universities.  As Chief Equal Rights Officer for the Wisconsin Personnel Commission, he was responsible for implementing some of the first sexual harassment and sexual orientation discrimination and anti-bullying policies and practices in the United States.  Mr. Gregg is nationally recognized for his work on harassment and respectful workplace in education, employment and service provision, and has helped numerous public and private employers.  A recognized educator and trainer, Bob has conducted over 3,000 seminars throughout the United States, and has authored numerous articles on practical employment issues, civil rights and management practices.