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As often happens with serious injuries, the recovery period is hard to predict. In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), Raymond Severson took his full 12 weeks of leave under the Family Medical Leave Act. He was addressing his serious back pain. On the last day of his leave, he went through back surgery. He asked for an additional 2-3 months of leave. The company said no and fired him when he did not return to work. The employee then sued for a violation of the Americans with Disabilities Act. Mr. Severson said the company failed to accommodate his need for time off.  Three months later, the plaintiff was cleared to return to work.

The employer was granted summary judgment. On appeal, the Seventh Circuit affirmed. Without any explanation, the court decided that Mr. Severson’s request was for “extended” leave. The court did not explain how it came to decide that 2-3 months was extended leave, as opposed to 6-7 months, or 9-10 months.

The court rightly noted that the ADA does not allow for extended leave. But, it did not explain why 3 months would constitute extended leave. The court found that leave involving “multiple” months would be too long. That period of time allows a person not to work, not help him work, said the court.

The Equal Employment Opportunity Commission filed an amicus brief. It argued that effective accommodation means reasonable accommodation. The Seventh Circuit disagreed, saying that the Supreme Court said in U.S. Airways v. Barnett, 535 US 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), that reasonable accommodation does not require that accommodations be effective. In a confusing sentence, the court concluded that “effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.” But, to be fair to the Seventh Circuit, the decision in Barnett is confusing. Justice Breyer seems to conflate accommodation with undue hardship. The Justice strains to explain that accommodation needs to be effective, which would render the use of the word “reasonable” superfluous.

In the end, the Seventh Circuit concluded that if the court read the ADA as the EEOC argued, then the ADA would become a medical leave statute. If employees are entitled to extended leave under the ADA, then the ADA becomes a medical leave statute, or an “open-ended” version of the FMLA. At this point, the court has abandoned legal scholarship and now relies on cliches. The court presents no evidence that Congress intended the ADA not to include medical leave. And, indeed, the language of the ADA indicates otherwise. See the decision here.

Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology.

This study looked at not just reported cases, or cases that went to trial, but tried to review the gamut of cases, those that settled early and even some that did not see a lawsuit filed. The study focused on disability, sex, race and age cases. It studied four central steps in any lawsuit, dismissal, early settlement, late settlement and trial. The authors interviewed plaintiffs and their lawyers.

It found the filing of discrimination lawsuits is on the decline. Discrimination filings have decreased from high of 23,725 such lawsuits in 1998 to only 13,831 in 2014.

They found some 36% of such cases were dismissed or thrown out of court on summary judgment. 50% of plaintiffs settled for an average of $30,000. The median settlement amount was $30,000.  Rights, at p. 4. Only 6 percent of cases filed resulted in trial. Among those trials, only 33% resulted in a win for the plaintiff.

Apart from cold numbers, the authors found the plaintiffs paid a high emotional cost for his/her lawsuit. They generally faced ostracism from management and co-workers alike. Many plaintiffs reported depression, alcoholism and divorce in the wake of their lawsuits. Many hoped to get their jobs back. That almost never happens. That finding certainly jibes with my experience.

The study also found that employment lawyers typically accept one in ten of the cases that cross their desks. That does sound right. That screening process unfortunately works against plaintiffs with fewer resources and against African-Americans. African-American plaintiffs were less likely to find lawyers willing to accept their case. That lack of representation means they were more likely have their cases dismissed.

The EEOC employs codes to identify early on which filings are more likely to result in findings f discrimination. It is a triage system designed to identify the cases where the EEOC can have the greatest effect. The authors compared those early factors to eventual outcomes and found the EEOC analysis was not accurate. The EEOC priority codes had no apparent relationship to the actual outcomes, found the authors.

The highest number of cases filed included race discrimination at 40%. Sex discrimination wa next at 37%. Then came age (22%) and disability (20%). See ABA Bar Journal report about the book here.

I will discuss later their observations about looking for lawyers and how well that process works.

The “outing” of celebrity sexual harassers continues. John Besh, the celebrity chef from New Orleans, has admitted to an improper sexual relationship. A female employee filed a complaint with the Equal Employment Opportunity Commission alleging he pressured her for a relationship. The New Orleans Times Picayune has reported that 25 current or former female employees reported various instances of sexual harassment by male managers at the Besh Group. John Besh resigned from the restaurant group that bears his name.

The Times Picayune reported that two EEOC charges were filed. One woman accuses Mr. Besh of pressuring her into a relationship. See Times Picayune report. Mr. Besh responds that he believed the relationship was consensual. Like in the Army, no relationship between a higher ranking person and a lower ranking person is truly consensual.

Harrah’s New Orleans casino said it would sever relations with the Besh Group and rename its restaurant, now known as Besh Steak restaurant. A Besh Group spokesman said none of its thousands for current and former employees had ever filed a sexual harassment complaint during its 12 years before now. But, the Besh Restaurant Group had never had a Human Resources department until Oct. 11, just a few weeks ago.

John Besh, who talks about his family frequently on his television show, said he was resigning, so he could focus on his marriage. He publicly apologized to his employees. See CBS news report. The Besh Restaurant Group operates some 11 restaurants and employs 1200 persons.

The Equal Employment Opportunity Commission has sued a local icon, Whataburger. The Tallahassee Whataburger, the EEOC alleges, harassed a manager after she refused to hire only white people. The EEOC claims the General Manager told the assistant manager to only interview people with “white sounding” names. Vanessa Burrous, instead, hired seven black employees and one white employee. The GM later chided Burrous for the hiring and told her the order came from upper management. The GM allegedly added that our customer base is white and we want workers who reflect that base. Ms. Burrous says she was harassed and forced to quit. See San Antonio Express News report.

Yes, it does violate Title VII to hire workers of a particular nationality or race, even if some customers might prefer persons of a particular race. If the plaintiff can support her case, Whataburger’s action would constitute a violation of Title VII. It is unfortunate that Ms. Burrous quit. It is difficult to show things were truly so bad that she had to quit – as opposed to simply wanting to quit. Whataburger is headquartered here in San Antonio.

Folks, loyal readers, here is a guest post blog from an esteemed, experienced trial lawyer in Los Angeles. Cortney Shegerian practices employment law in Los Angeles, California at her firm, Shegerian and Associates. She has mediated over 100 cases. Let’s hear what she has to say:

Sexual and non-sexual harassment is currently the number one reason why employees file complaints against their employers with the EEOC, and a new report may have discovered why these complaints are filed so frequently.

The Equal Employment Opportunity Commission recently released a report that showed anti-harassment strategies in the workplace are not as effective as they should be. The report showed that training efforts, which have been in place for over 30 years, are not effective in actually preventing harassment since they focus more on avoiding legal liability than stopping the behavior.

Harassment can happen to anyone, but the EEOC did identify a number of factors that could put employees more at risk of being a victim to harassment. These risk factors include:

  • Lack of diversity in the workplace
  • Workers who do not conform to workplace norms
  • Cultural or language barriers
  • External events that could impact employees’ prejudice (for example, terrorist attacks could cause some people to harass Middle Eastern employees)
  • A workplace full of young workers
  • Workplaces with significant power disparities
  • Employees who receive tips or work in customer service
  • Employees who do low-intensity tasks
  • Isolated workspaces
  • A culture that encourages alcohol consumption

The report also found that simply having a harassment policy in place is not enough to prevent it from occurring. In fact, many employees do not file complaints because they fear retaliation from their employers. According to the report, three out of four employees who are harassed because of their sex, race, religion or disability do not report it because they fear they will be blamed, called a liar or punished.

How can employers put an end to harassment? It is the employer’s responsibility to create an open and honest culture within the workplace where employees are encouraged to do the right thing and speak up when they are being harassed. Company culture is built at the top and makes its away down through the organization. Senior level executives and upper level management need to be responsible for setting the tone in the workplace.

To stop harassment, the EEOC also suggests a complete revamp of training procedures to include courses on bystander intervention and the basics of workplace civility. The latter will not focus on the specifics of harassment, but rather on how to respect one another in the workplace. Bystander intervention courses teach employees the importance of reporting inappropriate behavior and supporting their peers. It has been used on college campuses and proven to be successful, according to Chai R. Feldblum, Commissioner of the EEOC.

Finally, the EEOC has a number of resources available to employers, including a toolkit of compliance assistance measures for employers. The agency also plans on launching a campaign called “It’s On Us” to target harassment in the workplace. This campaign will be similar to the one that they launched to raise awareness about sexual assault on college campuses.

 For more information about employment law in California, see http://www.shegerianlaw.com.

Its a small thing really, but it can be so helpful. The EEOC has adopted a new national policy that it will allow persons who file an EEOC Charge to obtain a copy of the employer’s explanation. The employer is required by federal statute to provide a response to the employee’s charge of discrimination. The charge itself is just one page. The employer’s response, known as a “Position Statement,” can be quite lengthy with many pages of attachments. For decades, the EEOC has contacted the complainant and reviewed the employer’s response with the complainant. The EEOC would then ask for the employee’s response. Here in San Antonio, the EEOC would summarize the Position Statement in a letter and invite a response from the employee. But, in some regions of the country, the EEOC already provides a copy of the Position Statement itself and then invites the employee’s response. This change in national policy makes the process more uniform.

As I have mentioned before, the EEOC rarely conducts an actual investigation. That is, it does not typically interview possible witnesses or review documents. All it does is compare the employee’s charge to the Position Statement. But, when employers “fudge” the facts a bit, that early statement can include some valuable pieces of evidence. As the employer’s story evolves over time, the Position Statement is the first “cut” at what its story is. if the story changes later, that Position Statement is critical to show that the employer’s story has changed.

So, it is helpful to get a copy of the Position Statement sooner than later. But, in the end, this new policy changes little. The EEOC will still not conduct an actual investigation. So, the outcome of the EEOC investigation will not change. Yet, some defense lawyers see this change as  “one-sided” in allowing the employee to see the employer’s story – while supposedly not allowing the employer to see the employee’s story. See Holland and Hart blog post here for example. But, the employer does receive a copy of the charge. The charge is just one page, but it does indeed provide the employee’s story to the employer.

I cannot help but notice Holland and Hart’s advice that if the employer maintains good records and good policies, then this change will not affect them. Sure, but the defense lawyer does not mention that only in rare cases does the EEOC conduct an actual investigation. And, if there is no actual investigation, then there will not be a finding of discrimination. The EEOC does have teeth, but those teeth are so rarely used. But, I suppose if employers did not feel some sense of urgency, then they would not hire those defense lawyers…..

The Fifth Circuit issued a strained interpretation of events in the recent case of Norbach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir. 6/18/2015). In Norbach, the employee at a nursing home refused to pray the rosary with a resident. She was asked to do so by a co-worker. She was then called into the office by a supervisor. The boss told her that refusal amounted to insubordination. Ms. Norbach then said she could not pray the rosary. It would be against her religion. The supervisor said it did not matter. It was insubordination to refuse the request. She was fired. Ms. Norbach filed suit and eventually lost before the Fifth Circuit. The court of appeals found that the decision to terminate had been made before the employee raised her religious freedom as a motive. So, said, the court, the decision to terminate could not have been based on Ms. Norbach’s religion. See decision here.

Say what? The employee told the employer she was refusing based on her religion. He then replied that to refuse was insubordination for which termination was the appropriate response. If the decision had already been made, it was surely subject to recall when the employee explained her actions. And, it was surely just a matter of minutes before she explained her motivation. Strained interpretations make bad precedent.

I am reminded of the Norbach case, with its minute-buy-minute analysis regarding when a decision to terminate is made when I hear about the employee who nodded off at work. She was on medications for MS. The medications cause drowsiness. The employee tried to explain, but her boss would not listen. Her boss decided to fire her. She filed an EEOC charge, but like the Fifth Circuit in Norbach, the EEOC investigator decided the matter with that nano-second analysis. The investigator argued that the decision to terminate was made before the supervisor knew about the medications and the impairment. Well, wait a minute. If the supervisor made the decision to terminate before she learned about the medications, it was just barely before. It was seconds before. Yet, the EEOC investigator was prepared to dismiss the charge based on nano-second analysis.

This time, the employee had a lawyer, who argued no, the discussion was more complicated than that. The decision to terminate was not clearly made. And, really, the employer could have withdrawn its decision once it learned about the medications.

The EEOC investigator backed off his initial decision to dismiss. A few months later, the employer settled for a substantial amount. But, for a nano-second, the EEOC was prepared to engage in some injustice based on strained analysis.

Target has reached a settlement with the Equal Employment Opportunity Commission for $2.8 million regarding Target’s use of personality tests in hiring. It no longer uses the tests. But, it formerly used the tests for executive and professional level hiring. Target dropped the tests when the EEOC started its investigation in 2006. The EEOC’s investigation resulted in a cause finding that use of the tests resulted in discrimination against women and minorities. The tests were not sufficiently related to the jobs for which the applicants were being tested, said the EEOC. One of the three tests was performed by psychologists. The ADA prohibits medical exams before a job offer.See Fortune news report.

The EEOC also found that Target did not maintain adequate records with which to assess the impact of those tests. The EEOC believes the personality tests affected the non-hiring of thousands of applicants.

For those of us who deal with the Equal Employment Opportunity Commission regularly, that can be a lesson in futility. Like too many agencies, they are assigned too many cases and are expected to do too much with too little. So, it is not surprising that the EEOC folks do make their share of errors. But, the thing is their errors may deprive some hard-working victim of discrimination his or her day in court.

In Alvarado v. Mine Service, Ltd., No. 14-50668 (5th Cir. 7/30/2015), that victim of discrimination came very close to losing his day in court because the EEOC made a mistake. The EEOC let Mr. Alvarado’s complaint sit around for two years before his lawyer noticed and asked for the right-to-sue letter. The EEOC issued a letter dated June 14, 2013 allowing Mr. Alvarado to file suit. Mr. Alvarado had complained about a noose that was left on the foreman’s desk. The worker asked about the noose, and set up meetings for his Hispanic fellow workers to discuss issues with the supervisor. Mr. Alvarado was later fired for “stirring up” racial problems. Mr. Alvarado’s complaint was based on race. Yet, the June 14 notice from the EEOC referred to an age discrimination claim. The plaintiff’s claim was based on Title VII. Yet, the EEOC checked the block for ADEA.

And, even though it had a space for an EEOC official to sign it, the space was blank. It was not signed by the EEOC. And, the notice said the charge had been on file for less than 180 days, even though it actually had been on file for two years.

The plaintiff’s lawyer called the EEOC. The EEOC said they would send a new corrected notice of right-to-sue. They sent a second correct notice on July 8. The plaintiff then filed suit within 90 days of the second letter, not the first notice. Mine Service moved to dismiss saying the proper deadline started June 14 with the first letter, not the second letter. The district court agreed, finding the first letter conveyed all the necessary information, so that is when the 90 day deadline started. The lower court made an oblique reference to tolling, saying the EEOC did not mis-lead the plaintiff because the first letter was valid.

But, the court of appeals disagreed. It did find equitable tolling. The lower court had rejected the office administrator’s testimony as hearsay. She testified that the EEOC told her the first letter was incorrect. The Fifth Circuit said no, that was not offered to prove the matter asserted. It was not offered to show the letter was incorrect. It was actually offered to show the law office relied on what they were told by the EEOC. That reliance constitutes a “hornbook” law exception to the hearsay rule. Alvarado, at 7 (slip opinion). Too, noted the court, the July 8 letter said the plaintiff could file suit within 90 days of this letter.

So, now with the evidence regarding what they were told by the EEOC, the case falls within the line of cases which hold equitable tolling will extend a deadline. And, noted the court, extending the deadline 20 days will not cause any prejudice to the employer. And, this was not a case in which the lawyer was slow to act. The law firm was generally quick to react to the EEOC errors, seeking clarification and at one point, contacting the agency again when the EEOC was slow to send the second letter.

The EEOC makes plenty of clerical errors every year. They process thousands and thousands of claims every year. The courts should not allow a person’s claim to be subverted by clerical errors, especially when that claimant has been as diligent as this plaintiff was. It is refreshing to see a higher court bring some degree of common sense to the discussion.

The employer who lost its discrimination trial in 2012 has dropped its appeal.  A jury in U.S. district court awarded three plaintiffs $200,000 in damages.  That amount was later reduced to $140,000 due to statutory caps on damages.  See San Antonio Express News report.  

The manager was accused of using the "n" word frequently and of referring to African-American workers as "you people" and as "boy."  I previously wrote about this trial here. The EEOC has reached a settlement with the employer. See EEOC announcement. That would be a wise move.  The evidence of discrimination in this case does not get any better than racist statements like those. 

AA Foundries agreed to pay $20,000 to Kathy White as part of the settlement, even though the jury did not find in Ms. White’s favor. That is one of the positive things about a settlement – a party can agree to things they could not otherwise obtain at trial. The employer agreed to pay the full value awarded to the other workers. This is also a nice win for the EEOC, who are often maligned by both employers and employees.