What procedures prevent discrimination?

Disabled employees need not follow regular procedures to achieve reasonable accommodation

A U. S. Court of Appeals has held that an employer cannot require a disabled employee to follow the regular procedures for requesting a transfer. It was up to the employer to find her a reasonable accommodation, and to implement it.

Gile v. United Airlines (7th Cir 05/22/2000)


Employer required to accommodate escalating requests for accommodation

A little-noticed 1999 case from a U.S. Court of Appeals ruled in a situation where a disabled employee agreed with his employer, in writing, about what reasonable accommodations would be made for him on a business trip. Two days before the trip, the employee decided the accommodations were not reasonable. He attempted to contact his manager but she said she was too busy to talk. The employee then made arrangements for significantly more expensive assistance for the trip.

The Court held that it was reasonable for the employee to escalate his requests for accommodation, and that the employer had failed to enter into an interactive process with the employee to identify what was reasonable under the circumstances.

Roberts v. Progressive Independence (10th Cir 07/13/1999)

What are legal implications of post-tests?

What, if any, are the legal implications of giving training course participants post-training content tests to validate how much they learned? Is it okay if the tests are not used to as a direct link to their performance assessments? What if the test data are used to assess performance?

Rita Risser Responds:

Interesting question, and one I’ve been pondering. Especially as we move to various forms of computer-based training, there is more demand to post-test in order to prove the training actually was completed.

Partly it depends on what kind of training you offer. For example, I conduct sexual harassment programs. If we post-test, and participants don’t pass, we must be able to show that we worked with them to learn the concepts. Otherwise, if they harass others, the employer could be held liable for negligent retention. I believe there would be similar problems with safety training, environmental compliance, violence prevention and other programs relating to legal mandates.

If the training is skills-based and clearly job-related, then you have a very strong need to post-test and use test data to assess performance. For example, if you are training people to use heavy equipment and they fail the post-test, that will affect their performance back on the job.

The more “soft” the training is, for example leadership skills, the more difficult to post-test and the more attenuated to job performance. Take sales training for example. Many salespeople don’t thrive in a classroom environment. They don’t do well on tests. Yet they can sell up a storm. Is it fair to downgrade assessment of their performance because they didn’t do well on a test? I don’t think so.

Another issue is whether the test itself is valid. If the test results are used to assess performance, then they could be considered a “selection procedure” under the Uniform Guidelines on Employee Selection Procedures and must meet the standards for tests in the federal regulations.

Bottom line, if you do not provide legal compliance training, I think you are fine to post-test, as long as test results are not linked to performance assessment. To make that link, you must consult with an attorney who specializes in this area.

Employee loses discrimination case, wins $3 million + for retaliation

— by Ann Kiernan

Did you know that an employer can be found liable for retaliating against an employee who raises a discrimination issue, even if there was no underlying discrimination? One employer just got a multi-million dollar lesson on the subject.

Jennifer Passantino worked for Johnson & Johnson Consumer Products, Inc. (CPI) in for 18 years, rising through the ranks to become one of CPIÕs most successful salespeople and managers. Despite that, she was passed over for several promotions.

Ms. Passantino filed a formal complaint of sex discrimination. After that, her job duties were reduced, her accounts were transferred, she was excluded from meetings, her performance objectives were changed, and her job title was altered. She was offered–and refused–three demotions, and was told that her decision not to accept them meant that she was no longer promotable.

At trial, the jury found that CPI had not originally discriminated against Ms. Passantino in failing to promote her, but it had retaliated against her for her complaint. The jury awarded her $100,000 in back pay, $2,000,000 in front pay, $1,000,000 for emotional distress, and $8,600,000 in punitive damages. Oh yes, she was awarded $580,000 in attorneysÕ fees, too.

On appeal, the entire award except the punitive damages was affirmed, and the case was sent back for a new trial on that issue.

To avoid retaliation claims, always treat complainants with respect, even if their concerns turn out to be exaggerated or untrue. DonÕt allow co-workers to retaliate against the complainant either.

Passantino v. Johnson & Johnson Consumer Products, Inc.
2000 U. S. App. LEXIS 4003 (9th Cir. 2000).


How long do we have to keep resumes?

I work as an internal recruiter for a bank. We’re at odds on how long we should hold on to resumes.

How long should we be keeping our resumes on file (for those positions that we actively recruit)? Does this also include internet resumes?

Rita Risser’s response:

Under Title VII, the federal law on discrimination, employers must keep all resumes (internet or not) for 1 year. State laws may require longer periods, for example in California it is two years. However, if there is a claim of discrimination made for failure to hire, you must keep all relevant data (including resumes of other people not hired) for as long as the claim is pending. Since in most states employees have 360 days to file an EEOC claim, and it often takes the EEOC a few weeks to send out a charge, you won’t know if you are “safe” for at least 14 months.

I suggest you contact a local attorney to find out the rules for your state, and to set up a complete document retention and destruction system that will comply with the law and be easy to administer.

By the way, you should also talk to the attorney about any differences in the way you are handling resumes for positions in which you are actively recruiting, versus those that are sent in blind.


How Can We Get RIFfed Employees to Sign Releases?

In the case of a plant closing or loss of a management contract at a site where a majority of the employees will be RIFfed, what does the employer need to provide to the employees in order to require them to sign a release?

Rita Risser’s response:

There are at least three laws that apply to this situation. Under the WARN Act, (29 USC 2102 et seq.) employers in your situation are required to give 60 days notice, or pay in lieu of notice. Since this is required by law, you cannot consider this “severance” pay as defined below.

Under the Older Workers Benefit Protection Act, employees over 40 must be notified they have the right to consult an attorney before signing any termination agreement, and be given 21 days to do that. Then the employee has 7 days after signing the agreement to revoke it.

If you get past those two, then common law requires that in order for any contract to be effective, there must be “independent consideration.” In other words, in exchange for giving up the right to sue you, the employees must be given something in exchange. Typically, this is severance pay over and above the amount required to be paid under WARN.

If employees refuse to sign releases, you have a choice: offer more money, or take your chances that they will sue. You cannot require them to sign releases against their wills.

What should company do when employee gets right-to-sue letter?

When a former employee is issued a “Right to Sue Notice” from the Fair Employment and Housing Agency (for Sexual Discrimination) prior to the agency concluding the investigation, should the employer bring out the checkbook or begin litigation?

Rita Risser’s response:

I’ll answer your question both for California and also from an EEOC perspective. In this situation where you are dealing with the California Department of Fair Employment and Housing, the Right-to-Sue (RTS) letter means nothing. There are two ways employees get the RTS from the DFEH. The first is automatic — if the agency has not completed its investigation within six months after the claim is filed, they automatically issue the RTS. The second way to get the RTS is if the employee requests it. This usually means there is an attorney waiting in the wings. If that is the case here, you would have heard from the attorney by now. Once you do hear from an attorney, yes you do then open your checkbook, to pay for YOUR attorney.

Under the EEOC procedure in every state, the RTS is issued either if the employee requests it, or if the agency determines that there are enough facts in dispute that the agency can’t deal with it, but they want the employee to have their own chance to pursue it. If the EEOC thinks the employee has a great case, they do not issue a RTS, but instead the EEOC attorneys will represent the employee. The same is true for the California agency — if they think the employee has a great case, the DFEH attorneys will represent the employee.

So hold on to that checkbook and pay only after your attorney so advises you.

Are companies required to define criteria for promotions?

Are companies required to have clearly-defined promotion/advancement guidelines in place? If a company does not have clearly-defined promotion criteria and promotion is based solely on subjective opinion of a manager, can employees sue?

Rita Risser’s response:

There is no law in the private sector that requires clearly defined criteria. However, if you don’t have clearly defined criteria, and then an employee is not selected in favor of an employee who is different from them (race, age, gender, sexual orientation, religion, etc.) the employee could sue. Then the manager must defend the decision on the basis of a legitimate business reason. And without clearly defined criteria, the employee may be able to prove that the reason articulated by the employer was a pretext for discrimination.

For example, in a U. S. Supreme Court case a few years ago (Watson v. Ft. Worth Bank) the employee was given one reason after another for not promoting her, even though she often served as “acting” or “back-up” in the jobs she had applied for. The Court held because the employer did not have defined criteria, and the reasons given kept shifting, the employee had met her burden of proving discrimination.

Thus, in order to defend against a claim, we recommend that managers have clearly defined and written criteria for decisions.

Are interview questions illegal or bad business?

I’ve noticed that you use the term “it’s illegal to ask ….” My question is: Is it illegal or not a good business practice? It may be illegal to based a hiring practice/decision on an answer to a question i.e. arrest vs. conviction, (non law enforcement employment) etc. Certainly, it’s not a good business practice to ask certain questions due to putting the employer in the position of justifying the “job related” aspects of the question and the rationale that if it’s not job related, why ask the question. Is there Federal or State code specifically prohibiting the employer from asking certain questions?

Rita Risser’s response:

The regulations of the Equal Employment Opportunity Commission list specific questions which it believes can never be job related, and therefore are “illegal.” As a point of fact, if someone is asked an illegal question and then hired, there is no grounds for suit because there is no lost opportunity. But if an illegal question is asked and the applicant is not hired, the fact the question is asked is prima facie evidence of discrimination.

Can applications ask for date of graduation?

On an employment application, is there a potential problem with age discrimination if we ask for the graduation dates – i.e. – from high school and/or college?

Rita Risser’s response:

You are not allowed to ask dates graduated from high school because, just as you suspected, that does tend to indicate age. However, you are allowed to ask dates graduated from college, because people go to college at various ages, so it is not as age-determinative.


Just Management

Race Discrimination and Affirmative Action

In the summer of 1990, employees at Philadelphia Electric Company came to work one day and found pictures of Ku Klux Klansmen posted all around the office, and a noose hanging over the exit door. A white employee waved a noose at an African-American co-worker and said, “You know what they use these for.” Despite the immediate complaints, it was three months before the company took them down.

Just last summer, 1994, across the country at the Rodway car dealerships in Fresno, California, the general manager told his managers that the owner had a policy of not hiring African-Americans. He told employees that “regardless of what they had to offer” the company “did not hire blacks.” He frequently used racial slurs and stereotypes, encouraged other managers to discriminate and created a hostile working environment.

It’s hard for good people to believe that racism still exists today. Most of the racism we see is much more subtle than these cases. One of the questions we ask in the case studies in Managing Within the Law is if you’ve seen examples of racism at work. People all over the country, from all walks of life, and of all different races have discussed this question in small groups.

I’ve noticed in companies where there are few African-Americans, most people say they’ve never seen racism. In diverse companies, many African-Americans, and some whites, Hispanics and Asians, say they have seen it. Of course, people who work in virtually all-white environments “see” racism every day. They see it in the absence of African-American co-workers, managers and executives.

This is where Affirmative Action comes in. No, Affirmative Action is not dead. The June 12 decision by the U. S. Supreme Court outlawed minority set-aside programs. The Court did not get rid of Affirmative Action as we know it in the private sector. That’s unlikely to happen any time soon, because private sector Affirmative Action in employment does not give anyone preferential treatment. Affirmative Action is simply a procedure for identifying, recruiting, and promoting highly qualified people who represent racial diversity. It’s illegal to hire or promote a less-qualified minority or woman instead of a more-qualified white male. The big issue in Affirmative Action is how you define “qualified.”

At Silicon Valley companies, they say, “We hire the best.” At first I thought, “Like everyone else hires the worst!” But in the public sector, “best” usually is defined broadly. Government employers historically have set minimum qualifications for jobs based on scores on written and oral tests. Everyone who gets above a minimum score is put on a hiring list. Managers usually can hire anyone in the top five or ten of the list.

During the days of corrupt political organizations, managers in government would go down the list and hire number three or number nine to get their cronies in. When Affirmative Action came along, they tried to change the rules and only hire the top person.

The U. S. Supreme Court ruled that you couldn’t change the rules to keep out minorities. If someone in the top five is an underrepresented minority, courts have held you must use Affirmative Action to hire them instead of a white male higher on the list.

This is what is referred to in the law as “being hoisted with your own petard.” It’s unfortunate, because a lot of white men feel they have been hurt by Affirmative Action. Now, even minorities and women are questioning whether they have been more hurt than helped. Clearly, some of us have been hired to meet goals. But we’d like to think we have succeeded after hiring on our own merit. We look around and see we’re as good as most people, and better than some. We hear things that make us think we may be tainted as Affirmative Action hires.

It’s as a gay friend put it, “If you start with credibility, any information is filtered through that first. If they find out you’re gay after they know you’re good, you can be accepted. If they know you’re gay first, then that’s the filter and you can’t get the credibility.” The same may be true if the filter is Affirmative Action.

What you should do: Insist that your recruiters produce a diverse talent pool. If they say no one’s qualified, get a new recruiter or do it yourself. There are plenty of job fairs, minority student organizations, and places on Internet. Be aware of your unspoken assumptions, stereotypes and biases. If your “gut feeling” is that the “chemistry” is not right and the applicant would not “fit in,” ask yourself if you are being influenced by race (or gender or sexual orientation or age or . . .)

“You Have an Obligation to Think.”

The racism case on page 1 contained some instructive language from Judge Wanger of the U. S. District Court in Fresno. It relates to any case involving discrimination or harassment.

The judge found that some divisions of the company had no African-American employees, and others had only a few, most either inherited in mergers or hired after the first discrimination complaint. These numbers alone were evidence of discrimination.

The employer argued that African-Americans didn’t apply. The court held, “The defendant [employer] failed to keep and maintain any applications for unsuccessful applicants, despite Commission regulations that require the preservation of relevant records. One inference drawn from the defendants’ failure to keep these applications is that they would not support their defense.” In other words, if you don’t have the records to prove what you’re saying is true, the courts assume the records would prove you’re lying.

The employer also argued that any blacks who did apply were not qualified. The court ruled, “The evidence in this case indicates that the hiring criteria for employment as a salesman at the Rodway dealerships was completely subjective, except for the necessity for a driver’s license, credit check, non-termination from prior employment, and having, or obtaining, an automobile salesman’s license. A subjective and standardless selection system can be a ready mechanism for discrimination against Afro-Americans. Subjective criteria can mask both conscious and unconscious discrimination.”

The court went on to say that what the employer should have done was: 1) have written, objective hiring criteria, 2) interpret criteria consistently, 3) apply specific weight to each criterion, and 4) implement safeguards to attempt to eliminate discrimination.

Can your hiring process meet that test?

Here’s the best quote: when defendant Mr. Rodriguez admitted he didn’t worry about race discrimination at his company, the court quoted, “Unthinking discriminatory treatment can meet the threshold of intentional discrimination, because an employer has some obligation under [the law] to think.”

“Defendants give no formal personnel training to managers, nor any training in equal employment opportunity. No meetings are held with respect to personnel matters. [The President] assumes that when a general manager is hired, he has already had all the personnel training that is necessary.” This, the court ruled, was evidence of discrimination.

Keep Your Documentation for 3 Years — or else!

You KNOW you have to document. But if you don’t keep your documentation long enough, you could lose in court.

In several recent cases, managers destroyed their documentation before the legal time limit for keeping records. When they were sued for discrimination, the managers testified they had legitimate business reasons for destroying the records early.

The court held that the jury should be told to assume that the destroyed records contained information that was favorable to the employee’s side of the case.

Different laws require different lengths of time for record keeping. Applications only have to be kept two years, while medical records must be kept 20 years. If an employee lawsuit is filed, it conceivably could relate to records kept on any employee, no matter how remote. All relevant records must be kept until litigation is complete.

What you should do: Your company may choose to adopt a vigorous records policy to destroy each category of documents on the precise date allowed by law. Or you can take a more general approach. Other than medical records, and records related to ongoing cases, the longest limitation period we could find was California’s — three years from the date of termination. Of course, laws change, your state’s law may differ, and check with your HR Department or legal counsel for definitive advice.

Big Verdicts & Settlements


  • $8 million for non-exempt exempts. 1200 employees who were wrongly classified as exempt from overtime pay were awarded this amount in a recent class action suit.
  • $1.5 million for supervisor wrongfully terminated. A man who worked for UPS for 13 years, working his way up from driver to center manager, was terminated for misconduct, yet the jury found it was wrongful termination.
  • $1.2 million for age discrimination. A security manager who was “laid off” after 16 years won this amount when he showed his lay off was part of a pattern of eliminating older managerial employees.
  • $1.25 million for racial harassment. A black senior contracts administrator, who worked for just over two years, won this amount when a judge found he worked in a hostile environment.
  • $1.2 million sexual harassment verdict. Two police officers, a man and a woman, were falsely rumored to be romantically involved. Both were married. When management was asked to stop the rumors, they investigated but did nothing to stop the gossip.
  • $1 million for whistleblowing. A university administrator won this amount when she was fired after informing her management of expense account abuse by one of their own.

HR mistakes cost employer $17 million

A sloppy investigation of an internal claim of race discrimination warranted damages of $17 million against Hughes Aircraft, according to a California Court of Appeals on January 7.

The case involved a glass ceiling claim by Jeffrey Lane, a black physicist who had not been promoted after 10 years of employment. The HR rep found in her investigation that a white employee, hired at the same time as Lane, had been promoted after five years. However, he and Lane were paid the same. Therefore, she concluded, there was no discrimination.

The Court noted that failure to promote could be discriminatory whether or not the two employees were paid equally. Moreover, the Court chastised the HR rep for not looking at statistics of promotion rates for blacks generally in the company.

The Court gave specific suggestions for investigating discrimination claims.

For case excerpts:

HR mistakes cost employer $17 million – case excerpt.

Goland [the HR rep] did not make it part of her investigation to determine whether in general black employees of Hughes were discriminated against in positions similarly situated as Lane. Nor did she try to find out how many blacks were in higher levels than Lane to determine whether Lane was underpaid and under promoted as a result of his race. She considered such an investigation unnecessary.

In investigating Lane’s race discrimination claim, Goland did not go to Hughes’ affirmative action office. Having never worked in that office, Goland did not understand how affirmative action statistics were kept. Nevertheless, Goland considered company-wide information irrelevant.

Lane proved that Hughes’ reasons for not promoting him were pretext for a discriminatory reason. For example, although Goland found a white employee with Lane’s same title and educational background, she significantly did not recall the white employee’s performance evaluations and responsibilities. A legitimate comparison between employees requires knowledge of how an employee performs and what his duties are. The lack of such knowledge reveals the superficiality of Goland’s investigation.

Another nondiscriminatory reason that Hughes gave for Lane’s compensation and rank level was that Lane had a physics degree instead of an electrical engineering degree and that he did not obtain the degree until after he began work in 1977. However, there was evidence at trial that other, non-black employees ranked higher than Lane lacked bachelor’s degrees, and not everyone had an electrical engineering degree. Furthermore, no one contested Lane’s testimony that he studied engineering independently at home. More importantly, Lane satisfactorily performed his tasks. In fact, Mohler, whose laboratories Lane worked in at all relevant times, testified that Mohler never got complaints about Lane’s technical abilities or performance. As Laboratories Manager, Mohler was ultimately responsible for the staff under him. Therefore, the fact that he heard no complaints suggests that Hughes’ focus on Lane’s educational background constituted a mere pretext for discriminating against Lane.

As for Lane’s managerial skills, it is relevant that Mohler testified that he never received complaints about Lane’s ability to work with people. This testimony pierces a hole in Hughes’ excuses for taking Lane’s managerial duties away from him.

Court says failure to train managers allows punitive damages

“Further supporting a finding of maliciousness or reckless disregard, [the manager] testified that although the Wal-Mart policy stated that violations of the Civil Rights Act would not be tolerated, he was not familiar with the Act and had not received any training concerning what it prohibited. [Therefore,] ample evidence existed to support a submission of the punitive damage issue to the jury.” [The jury awarded $50 million, reduced by the judge to only $5 million.]

Kizmey v. Wal-Mart Stores, — F.Supp. —-, 1995 WL 691953
(United States District Court, No. 94-4195-CV-C-5, W.D. Missouri, Nov. 17, 1995)

How do we handle senior employee whose performance dives?

We are a small manufacturing company in Arizona doing a great deal of work for the defense industry.

We currently have a fifteen year production employee with a very good work and attendance record who, during the last month their production has gone in the tank. Within the last three weeks this employee has had 10 jobs returned for re-working. That is the same amount as in the previous six months. We had to move this employee from a testing position to an assembly position because the work was not acceptable.

Through the rumor mill, we have determined that this employee has diabetes. During a meeting concerning the production problems with this employee, we gave this person an opportunity to request some assistance or accommodation but this employee firmly maintains that the production problems are not health related.

Today this employee came to worked and has spread the news that an attorney has been obtained in case we try to terminate.

What can we do? Can we send her to a Doctor of our choice to determine if there is a health problem? Can we give her another position with less responsibility, even if it means a cut in pay? What questions can we ask about a persons health?

Rita Risser’s response:

Let’s back up a little. Granted you have quality control issues, but here you have a good employee with 15 years of good quality and within three weeks you demote her? In the mean time, ugly rumors are starting about her private medical condition, which you confront her with, even though it hardly seems reasonable that diabetes has anything to do with the situation.

There could be many things going on in this woman’s life: divorcing spouse, troubled child, dying parent, harassing boss. She may be very proud and not want to admit there is a problem. It is also possible that she has had a small stroke, which she will not admit even to herself. She should be approached with human kindness. You can say, “You are a valuable employee who we want to keep. We’ve all noticed the change in your performance. If there’s something going on here at work that is causing this, we want to know so we can stop it. If it’s something in your personal life, we can arrange for a personal leave of absence, employee assistance program, or something else. How can we help you?”

If she completely denies the need for help, ask her to think it over for a few days. If she still denies there is a problem, then you can tell her she must meet the requirements of the job. You can assign her any job you believe she can perform adequately, and pay her the amount usually paid for that job.

Negative reference is illegal retaliation even if employee would not have been hired

A civilian employee filed a claim of discrimination against the Navy for discrimination in employment and for her termination from employment. After she was laid off, her Navy supervisor gave a negative reference about her to the Army.

The court found that she was terminated because of her repeated refusal or failure to follow instructions, her refusal to perform assigned tasks, her obstinate manner of dealing with her superiors, and her inability to work under the supervision of military officers. Therefore, there was no discrimination.

On the retaliation claim, the Court found that the employee would not have been hired by the Army even if a negative reference had not been given. But since the motive for giving the negative reference was retaliatory, the Court held it was still a violation of the law. The Court said to have a “no harm, no foul” approach would allow employers to engage in behavior that would have a chilling effect on other employees who may wish to file discrimination claims.

This case re-emphasizes how easily people who lose their underlying discrimination claims win on retaliation. That’s why managers must be scrupulous in their dealings with employees both during and after employment.

HASHIMOTO v. DALTON, ___Fed3d___, 
97 CDOS 5295, (CA 9, July 3, 1997) 

The court concluded on the Case 1 discrimination claims that “the adverse personnel actions taken against Plaintiff were not the result of any discriminatory animus but rather because of her repeated refusal or failure to follow instructions, her refusal to perform assigned tasks, her obstinate manner of dealing with her superiors, and her inability to work under the supervision of military officers.” Id. at 1547. Further, the court concluded that Hashimoto’s Case 2 retaliation claim was meritless because the Army would not have hired her even if a negative job reference had not been disseminated.

The court also accepted the EEOC’s findings that Lowery’s dissemination of a negative job reference to the Army was motivated by unlawful retaliatory animus.

The government contends that Hashimoto failed to establish a violation of Title VII. In the government’s view, a negative employment reference is not an independently actionable adverse “personnel action.” Instead, the only “personnel action” involved here was the Army’s decision not to hire Hashimoto. Because, as the district court found, the negative reference did not cause this adverse “personnel action” by the Army, the government posits that Hashimoto failed to establish a Title VII violation.

The government’s lack of causation argument must fail. “There is little question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated by discriminatory intent.” London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir. 1981). Thus, it is beside the point that Lowery’s negative job reference was not the reason Hashimoto did not get the job with the Army. Lowery’s dissemination of the negative job reference is an actionable employment decision. Both the EEOC and the district court found that Lowery gave Hashimoto the negative reference in retaliation for her EEOC activities, and the government does not challenge that finding on appeal. Thus, the requisite causal connection is established.

We reject the government’s “no harm, no foul” approach. A plaintiff may seek relief for retaliatory actions taken after her employment ends if “the alleged discrimination is related to or arises out of the employment relationship.” Passer v. American Chemical Soc., 935 F.2d 322, 330 (D.C. Cir. 1991) (collecting cases). Title VII “does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer, or demotion.” Id. at 331.

Adopting the approach taken in Jurado, the district court here “looked behind” Hashimoto’s meeting with the EEO counselor and concluded that it was not protected activity because she did not at that time allege discrimination. Unlike in Jurado, however, Hashimoto did more here than merely complain to a superior. Rather, she contacted an EEO counselor about her concerns. Even assuming her concerns were “personal” in nature, we conclude that this contact with the EEO counselor was itself “protected activity.”

[15] An employer can violate the anti-retaliation provisions of Title VII in either of two ways: “(1) if the [adverse employment action] occurs because of the employee’s opposition to conduct made an unlawful employment practice by the subchapter, or (2) if it is in retaliation for the employee’s participation in the machinery set up by Title VII to enforce its provisions.” Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1981) (interpreting 42 U.S.C. ¤ 2000e-3(a) (¤ 704(a))). “The considerations controlling the interpretation of the opposition clause are not entirely the same as those applying to the participation clause. The purpose of the latter is to protect the employee who utilizes the tools provided by Congress to protect his rights.” Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). The district court appears to have examined Hashimoto’s retaliation claim under the opposition clause only. Under the participation clause, however, there can be little doubt that Hashimoto’s visit with the EEO counselor constituted participation “in the machinery set up by Title VII.” As such, it was protected activity. See, e.g., Eastland v. Tennessee Valley Auth., 704 F.2d 613, 627 (11th Cir. 1983) (contacting an EEO officer is protected activity); Gonzalez v. Bolger, 486 F. Supp. 595, 601 (D.D.C. 1980) (“Once plaintiff . . . initiates pre-complaint contact with an EEO counselor . . . he is participating in a Title VII proceeding.” (citations omitted)), aff’d, 656 F.2d 899 (D.C. Cir. 1981). Thus, we conclude that the district court erred in determining that Hashimoto failed to establish a prima facie case of retaliation.

Court limits retaliation claims

A woman files an EEOC charge. Her employer then transfers her, reprimands her for not being at work because she was meeting with Human Resources, and send two supervisors to her home when she is ill to demand that she be seen by the company’s medical department. Her co-workers become hostile, muttering “accidents happen” when she is near, and one of her supervisors tells her he will fire her.

In response, the woman felt under tremendous pressure and stress, and after four months quit her job.

The jury found she was not constructively discharged. In other words, a reasonable person would not feel forced to quit under these circumstances. However, the jury did find these actions constituted illegal retaliation.

On January 16, the Fifth Circuit Court of Appeals disagreed. Retaliation, according to Title VII, can only be found if there was an “adverse employment action.” Here, the employer did not fire, demote or take any other adverse action. Instead, it was the employee who took the action. The Court said, “While she may have been in jeopardy of discharge at some point in the future, this possibility obviously does not equal discharge.”

Mattern v. Eastman Kodak Co.,
___F4th ___, 1997 W.L. 14761 (5th Cir., Tex.)

Invalid EEO claim leads to valid retaliation case

A federal Court of Appeals in Chicago ruled on a case involving the limits on an employer’s duty to reasonably accommodate a mental disability. This case affirms how important it is for managers to treat employees fairly who have brought apparently invalid discrimination claims.

The case involved a woman who filed a claim of discrimination that her supervisors believed (and the court found) was invalid. Shortly afterwards, during her regular performance evaluation, she was treated with so much hostility by her supervisor that she passed out. She was then on disability for depression for 21 weeks. When she returned to work with her doctor’s note clearing her for full duty, her supervisor doubled her workload, brought her into his office to finish the evaluation, and assigned her to do inordinately heavy lifting even though she informed him she was five weeks pregnant. She injured her back doing this lifting and called in sick the next day. She was then terminated for chronic absenteeism.

The court held that although her original claim of discrimination was invalid, she could proceed with a claim of retaliation because of the “suspicious timing” of the hostile evaluation immediately after filing her claim. The court said the hostility when she returned to work was part of the same pattern of retaliation.

The court also ruled on an employer’s duty to accommodate unknown mental disabilities.

For case excerpts:

Invalid EEO claim leads to valid retaliation case – case excerpt.

Golliday has failed to present anything at all regarding whether she informed Metro Water of her alleged mental disability and her need for accommodation, let alone what should have or could have been done for her. Upon her return to Metro Water, Golliday never indicated that her mental condition needed to be considered a disability. She simply returned to work to avoid being terminated. She did not request a change of shifts or modifications of facilities or suggest any other accommodation for her mental state. Her doctors’ letter regarding her return, which we quoted earlier, stated that she was capable of working. It mentions nothing about her needing any special accommodation for a mental condition.

Golliday has not shown that she gave her employer enough basis for it to be held responsible for failing to inquire further. She initiated her return to work. Her doctors’ letter gave no indication that she was mentally incapable of returning to her job or that she needed any accommodation. Golliday never stated that she was not equal to the task of doing what her job duties entailed.

___F.4th ___, 1997 WL 16284 (7th Cir., Ill, No. 96-1332, Jan. 17, 1997).

Illegal interview questions cost $45,000

A local Houston coffee company was found to violate the Americans with Disabilities Act when managers asked an applicant several illegal questions during the interview. The applicant, who had years of experience in similar positions, was asked how his partial paralysis had occurred and what treatment he received. He was asked how customers and co-workers reacted to his disability. The applicant was not hired. The jury awarded $45,000. EEOC v. Community Coffee Co.,No. H-94-1061 (S.D. Tex, June 28, 1995)

Can we fire employee who doesn’t meet new goals?

We fired a lady over 40 from a job she held for five years. Her past supervisors rated her above average. We brought her in and explained she did not have the experience to lead the department to the next level. We did not put her into a training program or prepare a schedule. We told her she would be fired if she did not change. We felt she just wasn’t the right person. She filed a grievance, and the grievance board said we did not break any company policies, but they were concerned about the way she was treated. But she did not reach new goals! Are we in trouble?

Rita Risser’s Response:

The employer has the right to change standards, goals and assignments for employees. The employer has the right to “raise the bar” continuously. But when a long-term employee who has been rated above average is given new goals, the employer must help her reach those goals. That would include mentoring, sending her to training, giving her books to read, assigning her a buddy who can coach her, managing more closely than usual, etc. Instead you decided she “wasn’t the right person.” This just doesn’t sound fair.

Veterans Reemployment Act violated by denial of promotion

A registered nurse who worked for LA County for 18 years, and was also a Captain in the United States Army Reserve, was recalled to active military status to serve in Desert Storm. She spent several months on active duty, and then took a three month leave of absence as allowed per policy. 21 days after returning to work, she applied for a newly-opened position as a “Program Specialist, Public Health Nurse.” Her supervisor gave her a failing score.

Other employees heard the supervisor make negative comments about her being away on military service. The Court found there was sufficient evidence to go forward with a claim that the employer violated the Veterans’ Reemployment Rights Act, 38 U.S.C. ¤¤ 2021(b)(3) and 2024(b), which provides:

[a]ny person [employed by a State, or political subdivision thereof] shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.

___F4th___, 97 CDOS 6897 (9th Cir., August 27, 1997)






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