“Stupid is as stupid does.”

Forrest Gump

The Americans with Disabilities Act (ADA) became law in 1990.  Despite being the law of the land for 29 years, the ADA continues to confound businesses.  Last week, a jury found Walmart liable for violating the ADA when it refused to accommodate the disabilities of a longtime employee; it awarded the employee $5.2 million in damages.

Walmart could “afford” the large verdict, but your company cannot.  This article will help you make good employment decisions so you can focus on doing the business of your company.

WALMART’S FIASCO

Walmart employed a deaf and visually impaired cart pusher for 16 years in its Beloit, Wisconsin store.  The employee performed his job with the accommodation of assistance from a job coach provided by public funding.

Shortly after a new store manager arrived, however, the manager suspended the employee and forced him to resubmit medical paperwork in order to keep his job. When the employee submitted new medical paperwork, requesting the continued accommodation of assistance from the job coach, the store cut off communication and effectively terminated him.

After a 3½-day trial, the jury found in favor of the EEOC and awarded the employee $200,000 in compensatory damages and an additional $5 million in punitive damages.

“Employers have a legal obligation under federal law to work with employees who need accom­modations for disabilities,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District. “When companies shirk that obligation, the EEOC will fight to uphold the rights of disability discrimin­ation victims. In this case the jury sent a strong message to Walmart and to other employers that if they fail to live up to their obligations under the law, they will be penalized.”

ADA REASONABLE ACCOMODATION REQUIREMENT

We do not need to know every detail of the Walmart case to know this: cases that end up in court often share a common thread of employer mistakes.  To help you avoid making such mistakes, let’s address what the ADA requires; then we will look at how to avoid common employer mistakes.

The ADA prohibits employers from discriminating against employees with physical or mental disabilities. It requires that employers provide reasonable accommodations for such employees to be able to perform their jobs.

“Reasonable accommodation” means any change to a job or work environment that permits an employee with a disability to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

• providing or modifying equipment or devices,
• job restructuring,
• part-time or modified work schedules,
• reassignment to a vacant position,
• adjusting or modifying examinations, training materials, or policies,
• providing readers and interpreters, and
• making the workplace readily accessible to and usable by people with disabilities.

An employer is required to provide a reasonable accommodation to an applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.

HOW TO STAY ADA COMPLIANT AND OUT OF COURT

Here are six core issues to consider when disciplining or terminating employees with mental or physical challenges:

1. Terminating or disciplining an employee with a long tenure at the company.

The Walmart employee had been with the company for 16 years, when all of a sudden it appeared that Walmart changed the rules of the game.  Any time you have an employee with a lengthy work record you should think twice about whether terminating the employee will be perceived to be for an unlawful reason.

2. Optics.

Have you ever been to a grocery store and been helped by someone who had a disability?  I had a visceral reaction when I learned that Walmart had fired such a worker.  Most of us have a place in our hearts for people who are faced with challenges but who nevertheless work thru those challenges; so did the Walmart jury.  When terminating a disabled employee, think optics:  how will this look to the public, or to a jury?

3. Ensure you have explored a reasonable accommodation for the employee.

Do not terminate a mentally or physically disabled employee without first (1) exploring in good faith whether you can provide the employee with a reasonable accommodation and (2) documenting your efforts, because to the EEOC if an issue is not documented it never happened (i.e. the EEOC will conclude that you did not comply with the reasonable accommodation requirement).

4. Terminating or disciplining an employee with no disciplinary history.

As with a long term employee, terminating a disabled employee with a good work history, history of good reviews, or no disciplinary history is risky. 

5. Decide the basis for your “undue hardship” defense before you terminate a disabled employee.

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of factors such as the nature and cost of the accommodation, the overall financial resources of the employer, and the type of operation or operations of the employer.

Before you terminate a disabled employee on the basis that an accommodation will cause an undue hardship to your company, ensure that you can support your conclusion with evidence and a reasoned analysis.  Consider the relatively small cost of paying legal counsel for an hour or two of consultation on your prospective termination decision, versus possibly paying for hundreds of hours if you make a poor decision and require litigation counsel.

6. Eliminate conflict and risk via a severance agreement.

In many instances both the employer and employee are looking for a reasonable, amicable way out of a difficult situation.  Instead of inflaming a situation by terminating an employee, consider the possibility of a negotiated resolution via a severance agreement; under such an agreement your company would pay the employee a sum of money and, in exchange, the employee would provide your company with a release of any claims the employee could assert.

CONCLUSION

You control your company’s destiny.  If you understand the ADA and, equally important, human nature, your chance of ending up on the wrong end of a Walmart-like jury verdict will decrease to near zero. 

Forrest: What’s my destiny, Mama?

Mrs. Gump:  You’re gonna have to figure that out for yourself.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli. 

Never seem to be in a hurry — hurrying betrays a lack of control over yourself, and over time.  Always seem patient, as if you know that everything will come to you eventually.  Become a detective of the right moment; sniff out the spirit of the time, the trends that will carry you to power.  Learn to stand back when the time is not quite yet ripe, and strike fiercely when it has reached fruition.

Robert Greene, The 48 Laws of Power, Law 35:  Master the Art of Timing

Last week the EEOC announced that a nationwide health care company headquartered in Scottsdale, Arizona will pay $150,000 and furnish other relief to settle a lawsuit for pregnancy discrimination brought by the EEOC. 

Matrix Medical’s timing could not have been worse:  it rescinded a job offer for a credentialing manager position within a week of learning the applicant was pregnant.

Understand, incorrectly timing an employment termination can be very costly to your company; it will fuel the perception that your decision was for an unlawful reason.  Poorly timed your HR decisions will send your company into the matrix (pun intended) occupied by the EEOC, courts, and lawyers.   This article provides tips for timing employment decisions to protect your company and treat your employees fairly. 

CAUGHT IN THE MATRIX

This is your last chance. After this, there is no turning back. You take the blue pill – the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill – you stay in Wonderland and I show you how deep the rabbit-hole goes. 

Morpheus, The Matrix

Matrix Medical offered a job to Patricia Andrews after a lengthy interview process that included her flying to Arizona twice for in-person interviews at Matrix Medical’s Scottsdale headquarters. Within a week after learning she was pregnant, Matrix Medical accused Andrews of not informing the company she was pregnant during the interview process and then withdrew its job offer.  

So began Matrix Medicals’ journey into the legal system.  Andrews filed an EEOC charge of discrimination against Matrix Medical.  The EEOC then sued Matrix Medical on Andrews’ behalf, alleging pregnancy discrimination.  A settlement agreement was reached last week that requires Matrix Medical to pay $150,000 and issue a letter of apology to Andrews. The agreement also requires the company to review and revise its equal employment opportunity policies, revise its personal leave-of-absence policy to include a provision that pregnant employees may take leave during their first six months of employment, and train its supervisors on Title VII and other anti-discrimination laws.

“Pregnancy discrimination remains a major barrier for women in the workforce,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill. “More than 40 years after the passage of the Pregnancy Discrimination Act, employers still choose not to hire pregnant applicants or to fire employees after learning they are pregnant. The EEOC will continue its efforts to ensure pregnant applicants and employees are able to work free from the threat of discrimination.”

HOW TO STAY OUT OF THE MATRIX

I’m trying to free your mind, Neo. But I can only show you the door. You’re the one that has to walk through it.

Morpheus, The Matrix

Correctly timing an employment decision requires a manager to (1) understand whether terminating or disciplining the subject employee presents a high risk to the company and (2) implement the decision after the risk has been mitigated. 

High risk employees include:

• Employees who may have mental or physical disabilities under the Americans with Disabilities Act (ADA)
• Employees requesting FMLA leave, on FMLA leave, or who have just come off of FMLA leave
• Pregnant or recently pregnant employees
• Employees who have recently made sexual harassment or discrimination complaints
• Minority employees
• Older (over 40) employees
• Employees who have recently complained of illegal activity (i.e. whistle blowers)

Terminating or disciplining an employee who occupies one or more of these categories presents the increased risk of a lawsuit.  The risk of a lawsuit and/or losing that lawsuit will be reduced to near zero if your company (1) properly documents the lawful basis for the termination and (2) correctly times the termination.

Here is an article as to how to effectively administer and document discipline or a termination. 

Properly timing discipline or a termination is about making sure that there can be no perception or inference that the termination is for an unlawful reason.  For example, if an employee complains to her manager on a Monday that she has been the victim of sexual harassment, and she is fired later that week, most people will reasonably conclude that she was fired because she reported sexual harassment. 

The time period between when an employee reports harassment, discrimination, pregnancy, or disability, and when the employee is fired is known as “temporal proximity.”  The closer the timing, the more the EEOC and courts will infer that the termination was for an unlawful reason (e.g. reporting harassment), and not for a legitimate reason (e.g. poor work performance).  Courts have stated:

• Where adverse employment action “follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation.”

• “A two-and-one-half month period between protected activity and adverse employment action can be sufficient to establish causal connection needed for a prima facie case.”

VS.

• “The inference of a causal connection becomes tenuous with the passage of time.”

• “A nine month period between the protected conduct and alleged retaliation undermines the inference of causation.”

• “Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity.”

There is no definitive period of time employed by the courts to determine whether an employee’s termination was for a legitimate or unlawful reason.  Court decisions and jury verdicts depend on the facts of each case and the inclinations of judges and jury panels.  What is certain is that the greater the temporal proximity, the higher the risk to the employer.

CONCLUSION

Here is your take away:  be patient in disciplining or terminating an employee who has recently reported harassment, discrimination, pregnancy, or disability; and, do not otherwise treat that employee differently after he or she has complained.  Federal Express recently learned this the hard way when it allegedly placed an employee who had complained under close surveillance – she was the only employee whose comings and goings to the bathroom were tracked, whose managers were constantly surveilling her, and who was written up for unexcused absences even when she provided doctor’s notes excusing these absences.  A jury awarded Sheryl Hubbell $85,600 in combined front and back pay, $30,000 in “non-economic damages,” and $403,950 in punitive damages against Federal Express.

If you have a legitimate basis for disciplining or terminating an employee, and the employee has recently engaged in protected activity (e.g. made a discrimination complaint or requested ADA leave), consider contacting legal counsel to develop a plan for proceeding forward.  Regardless, make sure all your decisions are legitimate and lawful and, equally so, that they will be perceived that way by others.

In sum, if reasonable people believe you have not violated the law, then you need not fear being targeted by ex-employees and plaintiffs lawyers:

Neo:
What are you trying to tell me? That I can dodge bullets?

Morpheus:
No, Neo. I’m trying to tell you that when you’re ready, you won’t have to.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

“If mistakes happen, effective leaders don’t place blame on others. They take ownership of the mistakes, determine what went wrong, develop solutions to correct those mistakes and prevent them from happening again as they move forward.”

Jocko Willink, The Dichotomy of Leadership: Balancing the Challenges of Extreme Ownership to Lead and Win

Observing others’ successes and failures is a good way to learn.  However, the primary way we learn is through our daily “self-experiments.”   Example:  you come home tired after work and ignore your spouse.  It does not go well.     If you are smart you adapt: exhausted or not, you pay attention. 

Our work lives are no different.  Eyes focused on serving clients and positive balance sheets, it is easy to develop bad habits elsewhere.  Ignoring employee problems is one such mistake.  You can take a small, easily solvable problem and turn it into a lawsuit.

At some point in life most women encounter the man who cannot take no for an answer.  In the workplace, this causes various problems.   If management does not step in and solve the problem, the company may end up owning it. This article provides guidance for employers looking to solve, not own, sexual harassment problems.

Last week a federal court provided guidance for employers eager to know what to do when faced with complaints of harassment or discrimination.  Many of you, particularly women, will quickly recognize the fact pattern in Holland v. NTP Marble. 

HOW MANY TIMES CAN SOMEONE ASK A WOMAN OUT ON A DATE BEFORE IT BECOMES HARASSMENT?      

Robin Holland alleged that that Chris Bekas pursued her by repeatedly asking her out and contacting her via text messages. Bekas admitted that he exchanged personal text messages with Holland three to four times a week wherein they generally discussed if they could meet up, but Holland usually said that she was busy. Bekas asked Holland to go to dinner with him three or four times before she accepted his invitation.

Bekas testified that he thought Holland was interested in him because she walked by his office and smiled, and because they had gone on a date. Bekas further stated that he was interested in a sexual relationship with Holland.

Holland claimed that Bekas’ harassment culminated when he touched her inappropriately while in the back construction area at work. Holland told another employee about the incident. Holland  alleged that the employee responded “this isn’t the first time that this, quote, creep has done this.” The employee told Holland, who was reluctant to come forward and make a complaint, that she would report the allegation to management if Holland did not. Holland then went ahead and reported the incident management by sending an email to company’s Chief Operating Officer. 

Does this sound familiar so far?  I thought so.  What came next determined whether the company was held liable for Bekas’ alleged conduct.  Here is what happened:

• Bekas was immediately suspended and required to leave the building. 

• Bekas had no further communication or contact with Holland, and no further incidents occurred.

• The CFO talked to Holland on the phone about the “details, exactly what happened … exactly where she was … harassed and touched in an inappropriate manner” and asked for a formal statement.

• Bekas spoke at length about the allegations to an outside attorney hired by the company to help investigate the allegations.

• The CFO also interviewed the employee Holland had initially spoken to.

• However, the company had never given sexual harassment training to Bekas and its CFO admitted that “If we had stronger policies — had we had been — there be, you know, no contact, you know, they’re lackadaisy [sic.] as far as making specific policies and really lackadaisy [sic.] at enforcing them. So, you know, nobody was even supposed to be in the service department. Nobody’s even supposed to be using these doors. Had we, as a company, said that nobody should be back in the construction area alone, because nobody should be back there alone. So, you know, nobody would be in this position today.  I don’t think anybody should have been allowed in that back area alone.

HERE IS THE LEGAL TEST YOUR COMPANY MUST PASS

Do you think the company was held liable?  Here is the legal test for employer liability — apply it to the facts and test your knowledge:

An employer’s liability for a hostile work environment claim depends on whether the harasser is the victim’s supervisor or merely a co-worker. When a harasser is a co-worker or other non-supervisor, employer liability attaches only if (a) the employer failed to provide a reasonable avenue for complaint or (b) the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.  An employer’s remedial action is adequate if it is reasonably calculated to prevent further harassment.

The mere fact that the harassment fortuitously stops does not demonstrate that the employer acted reasonably.  An investigation must be undertaken, and an employer can be held liable if a faulty investigation renders its subsequent remedial action inadequate, i.e., not reasonably calculated to prevent further harassment.  However, if the remedy chosen by the employer is adequate, an aggrieved employee cannot object to that selected action. An employee cannot dictate that the employer select a certain remedial action.

Applying this test, the court ruled in favor of the company.  While it could have done things better, the company had an anti-harassment policy and complaint procedure in place and took proper remedial action upon learning of the alleged harassment. 

Note:  the company won the case despite evidence that Bekas had several incidents with other females.  One testified that he asked her out on dates multiple times, “constantly approached her during breaks, and she found him to be “creepy and weird.” A male employee stated that he had witnessed Bekas offer himself to several female co-workers and make inappropriate comments to female employees. And, Bekas was reprimanded on one occasion for calling a customer to ask her out on a date.  However, management had never learned of these incidents until after Holland had complained; so the company was not liable for Bekas’ conduct.

In finding for the company, the Holland court contrasted a prior case where an employer had not acted promptly or properly:  it forced a woman to speak to five different supervisors to elicit any response from management; management took five months between her complaint and a response; and management’s only instruction to the alleged harasser was a one-page memo two months after the last incident of harassment.  Do not be “that” employer.

Harassment and discrimination complaints are a gift.  They afford businesses the opportunity to address and resolve festering problems. Some companies. however, squander this gift.  These companies get punished twice — first because the problem continues and next when they find themselves on the receiving end of an EEOC investigation or lawsuit.

By failing to prepare, you prepare to fail.  Have procedures to handle harassment and discrimination complaints.  Then, when you receive a complaint you will know what to do and you will do it. 

REVERSAL:  It is not always proper to immediately suspend or discipline an alleged harasser before learning all the facts; doing so could expose your company to liability to the alleged harasser.  Seek legal counsel when in doubt.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; conducts sexual harassment and other investigations; and is an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

War is deceptive: you may think you are strong and that you are making advances against an enemy, but time may show that you were actually marching into great danger. You can never really know, since our immersion in the present deprives us of true perspective. The best thing you can do is to rid yourself of lazy, conventional patterns of thinking. Advancing is not always good; retreating is not always weak.

To waste your time in battles not of your own choosing is more than a mistake, it is stupidity of the highest order. Time lost can never be regained.

Robert Greene, The 33 Strategies of War

As an employer you seemingly hold all the cards. You can terminate an employee for failing to perform or for no reason at all. Employees work for you “at will” — as long as you want them to.

Life is not so simple. Terminating an employee can be an act of war. You have just deprived someone of their livelihood. You may have wounded their pride. And you may have embarrassed them. Never be surprised when such a person strikes back at you.

As an owner, manager, or human resource professional, you are a risk manager. You must know the law and, equally so, the laws of human nature. Ignore either and you may find yourself in court — wasting time and treasure.

This article provides you with a risk management tools to make employee termination decisions. Understand when it is better to bide your time rather than to act in the moment. Follow these guidelines and keep your time, money, and sanity. Leave bad decisions to your competition.

“It’s who you know and who you blow.” This tasteless comment from one employee to another got the employee fired. Was it a lawful termination? The question was answered last week in Scheidler v. Indiana. However, after six years of court battles I am not sure it really mattered. With the enormous waste of time and money, both sides had lost by then. Only one group had profited — the lawyers.   

There are interesting legal questions which arose in the case: what are limits of what employees can say to each other?  Was Brenda Lear Scheidler’s crude comment really a complaint about favoritism in the workplace — a “protected activity” for which she should not have been fired?

However, “interesting” legal questions are best left to lawyers. You have a business to run. You cannot do so while litigating against ex-employees. Therefore, let’s examine how Brenda Lear Scheidler’s employer could have avoided the fiasco from the start — and how you can be a good risk manager when faced with difficult employees.

SCHEIDLER V. INDIANA

Brenda Lear Scheidler worked for the Indiana Department of Insurance (IDOI). She sought accommodations for disabilities related to her mental health, including that her coworkers not startle her. She received these accommodations for several years. But on May 28, 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into this workplace incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”

Weeks before she made the comment Scheidler she had applied for a new position.  Another employee, Mary Ann Williams, also wanted the job. As Scheidler and others left work one day, they noticed Williams was not at her station. Scheidler then said, “Oh, it looks like Mary Ann is still upstairs in her interview for her government job.” 

Her co-worker responded, “Brenda, don’t we all have government jobs? We’re all State employees.”

Sheidler then replied, “Well, I mean for her federal job upstairs … I’m sure she’ll get it because … it’s who you know and who you blow.”

IDOI terminated Scheidler for this comment and one other incident. Sheideler then sued alleging disability discrimination, retaliation, and other claims. 

The case went on for six years.  The employer prevailed, but only after costly and time-consuming discovery, a trial, and an appeal.   With better decision making by company management, Scheidler v. Indiana would never have come to be.

DO NOT FIND YOURSELF IN COURT DEBATING THE MEANING OF “BLOW”

“Another such victory over the Romans, and we are undone.”

King Pyrrhus

A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Someone who wins a Pyrrhic victory has also taken a heavy toll that negates any true sense of achievement.

Pyrrhic victories can hit close to home.  Have you ever “won” an argument with your spouse, only to suffer tenfold from the ensuing fallout?  Yeah, me too.

Some (mostly lawyers) who read Scheidler v. Indiana will come away believing it was a victory for IDOI.  But those of us who know history — and have learned from our experiences —  know otherwise.  We think:  how could we have avoided six years of painful litigation, while at the same time having managed this group of challenging employees?

HOW TO BE A GOOD RISK MANAGER

Risk management requires managers to first identify the risk.  Untrained, inexperienced, or impetuous managers lack this skill.

Here are ways to improve your risk management game when disciplining or terminating employees:      

• If an employee is a minority or in another protected class (e.g. over 40, pregnant, disability), then there is increased risk of a discrimination claim.  For example, Brenda Lear Scheidler had a mental disability that she claimed was the real basis for her termination.

• If there is no record of you having disciplined the employee and/or a history of positive employee reviews, terminating the employee for performance or other “cause” based reasons will be problematic.

• If the employee has recently reported misconduct or harassment, then the risk of a retaliation claim — and liability for your company — is high.

• You will increase the risk of a claim by fudging the real reason for the termination —  for example, telling an employee that the company is “restructuring” or “eliminating the position” when in truth the basis for the termination is something else. In court this sort of statement can and will be used against you.

• Patience pays:  if you want to terminate an employee, but the immediate risk is too great, it is often best to wait and establish a better record of discipline for a future termination (assuming the employee continues to perform poorly or engage in inappropriate behavior).  In 27 years of counseling employers, I have never once seen this strategy fail to succeed.

• Ask yourself:  have I been consistent in meting out discipline?  Treating two employees with similar offenses differently can be evidence of discrimination.

• Conduct an adequate investigation into the facts before you make a final decision.

• Document discipline; if you do not write it down, it might as well never have happened.

• Understand, employees are permitted by law to criticize management and work conditions.   Think twice before firing an employee on the basis of a critical, possibly offensive, comment about the workplace or your business.

• Contact legal counsel if there is any question regarding your strategy or pending decision.  A half hour call is much less expensive than a trip to the courtroom.  

TAKE CONTROL

Court can be a Roman circus.  The Scheidler parties actually debated the meaning of “blow.” The judge, in making his decision, went further: “Blow” has various potential meanings. Another Lear famously hurls it without obvious sexual innuendo: “Blow winds …! Rage, blow!” William Shakespeare, King Lear, Act III, sc. ii.

You have control over your workplace.  You do not have control in the courtroom. Use the tools provided in this article to make good, informed decisions and your risk of ending up in court will fall to near zero.  Operate in the dark, however, and you may find yourself among lawyers and judges debating the meaning of “blow” or some such other random word. 

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.