This question has bedeviled more than one employer, but the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee, has given us a good answer. But first, let's talk a bit about the employer's dilemma.

You have a policy saying that an employee can't work while on medical leave. Your policy probably doesn't cover recreational activities, but everybody knows you don't go to Six Flags or play golf or till the soil for your vegetable garden when you're sick or injured.

So you have an employee who goes out on medical leave, and somebody tells you that they saw Joe doing one of these things. Maybe you even heard that Joe had another job.

Can you fire him for fraudulent medical leave?

Not necessarily. First, it's a good idea to make sure the rumor is true, or at least "more likely than not" to be true. But even if you were the one who saw Joe doing cartwheels in his front yard during his leave for degenerative disc disease, you may not have caught him as "red-handed" as you think. (Well, maybe if he was doing cartwheels . . .) It could be that the employee's "recreational" activity, or even alternate employment, is within his medical restrictions while your job is not. In fact, most doctors would recommend that employees engage in some activity while on medical leaves. It can speed recovery and help to ward off depression by providing sunshine, fresh air, exercise, and even a little bit of money to help pay those doctor bills that you, as the employer, are not already paying.

I've seen this situation a time or two. Several years ago a client's full-time employee had to take leave under the Family and Medical Leave Act for stress. While he was on leave, somebody reliable saw him working in the men's department at a local shopping center. The company was ready to fire him for fraudulent FMLA leave, but I recommended caution because of the possibility that the job at the department store was within his medical restrictions while our client's job was not. The company investigated, and sure enough -- it turned out that the store job was part time, much less "stressful" than the employee's regular job, and completely within his restrictions.

So we ended up letting him continue to work at the store while on leave from the client.

On the other hand, we've caught (on video, which is always fun) a company nurse who supposedly couldn't work at all doing exactly the same work full time for a local doctor's office while out on workers' compensation leave from our client. We fired her and terminated her workers' comp. She threatened to sue, but gave up pretty quickly.

Other fishy real-life cases have included

*an employee out with a bad back who was seen at church wearing seven-inch stiletto heels and having no trouble getting around in them, even on the church's gravel parking lot.

*an employee out for depression who spent an entire day manning a table at a gun show.

*an employee with a bad back who spent an entire day stocking and manning a booth at a fair, and then loading boxes into her van at the end of the day.

Our recommendation in all of these cases is to take a case-by-case approach, first making sure you have reliable information, and then considering the nature of the employee's illness or injury, the employee's restrictions, and the activity he or she was "caught" doing.

But how much investigation is enough? That's the question that's been answered by the Sixth Circuit. 

The plaintiff (we'll call him "Betelgeuse") absolutely, positively won't work, babe - he just won't - but then some co-workers saw him at an Oktoberfest, walking around and drinking bier and flirting with frauleins. (I made the "flirting" part up, but the rest is true.) The employer did an investigation, interviewing the employees who had seen Betelgeuse at the fest. All but one said he seemed to be fine. One said that he seemed to be in pain. The employer also reviewed his medical and personnel records, and finally decided to fire him for taking fraudulent FMLA leave. Betelgeuse sued, alleging "interference" (not letting him have FMLA leave* he was entitled to) and retaliation (punishment for taking FMLA leave).

*Interference can also include discouraging an employee from taking FMLA leave.

The district court granted the employer's motion for summary judgment, and two judges on a three-judge panel at the Sixth Circuit affirmed. Although Betelgeuse claimed that the employer should have done a more thorough investigation, including talking to the witness who thought the employee seemed to be in pain and talking to BG's own physician, the majority said that an employer didn't have to be correct and didn't even have to conduct an "optimal" investigation. As long as it appeared that the employer honestly and reasonably believed that the employee had misrepresented his medical condition, it was ok for the employer to take action without being liable for FMLA violations.

It's obviously great news for employers that they (1) don't have to be right beyond a reasonable doubt, and (2) don't have to do an airtight investigation as long as they've done some reasonable investigation.

And, now that you're feeling all warm and fuzzy, a disclaimer - notice I said that two out of three judges reached this decision. That leaves one, who dissented. According to the dissenting judge, the employer should have followed up with the witness and the employee's doctor and its failure to do so created a "genuine issue of material fact" (requiring a jury trial) as to whether the employer's belief was reasonable and in good faith. Given the dissent, it's possible that the plaintiff will ask to have the appeal reheard by all of the judges on the Sixth Circuit, and the full Sixth Circuit may reach a different decision.

And in other news . . .

Yesterday I was honored to be part of a web radio interview hosted by Stephanie R. Thomas of The Proactive Employer with Lilly Ledbetter (yes, that Lilly Ledbetter!) on the subject of equal pay. The interview is posted on Stephanie's website, and you can listen to it at your convenience. Next Thursday at 3 p.m. EDT, Stephanie will be interviewing Patricia Shiu of the Office of Federal Contract Compliance Programs. Good stuff!

Also, I must send you to a great post by Jon Hyman talking about why we don't need new legislation to address pregnancy discrimination. Jon also provides a link to another excellent post by Suzanne Lucas ("the Evill HR Lady") on "Why you should stop attending diversity training." (Please note that Suzanne is not anti-diversity -- just "anti" most of the training that goes on these days. I happen to agree with her, but whether you do or not, I think you'll find her post thought provoking and worth your time.)

To all my fellow moms out there, have a wonderful Mother's Day weekend!

(Photos from Wikimedia Commons, public domain.)

How ya doin'? I'm not too bad . . . just keepin' my nose to the grindstone at work and enjoyin' the spring weather, and not a whole lot else . . . same old, same old.

Listen, hon. I know it's been a while since we've been in touch, but when I saw your new "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq." -- no offense, but that is not a catchy title!! -- I just had to sit right down and write yourself a letter.

Can we talk?

Don't get me wrong, hon -- I'm cool with not usually considering arrest records in making employment decisions. I get all that adverse impact stuff, and I'm opposed to it, just like you. And I agree with you that we shouldn't be winking at the white guy's crime while getting all hot and bothered over the black or Hispanic guy who does the same thing.

But, dang, girl! I'm reading this thing, nodding my head, saying, "Uh-huh, uh-huh, yep, good point, amen, uh-huh," and then - BAM!

I hate to say it, but some of your numbers seem a little . . . dishonest. Like, OK. You say that "African Americans and Hispanics are arrested in numbers disproportionate to their population." I get that. But then you say (and I'm skipping a little -- I'm trying to keep this letter from turning into War and Peace) "African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites."

Huh? Why talk only about drug offenses? What about murder, armed robbery, grand theft auto, obstruction of justice, using presidential campaign contributions to pay off your mistress so she won't squeal to the media about being pregnant and sink your campaign (allegedly, allegedly!), and breaking into the Democratic National Committee headquarters to commit a third-rate burglary?

And why compare arrests (etc.) for drug offenses with the rate of drug use? Sweetie, I've been around the block a few times. Trust me, there are a lot of drug offenses besides "use." Like dealing. Or running a drug house. Or being in a high-speed chase with the cops because you have a stash in your car. Or stealing to buy your drugs. (How do I know all this? I was young once myself. Kidding!) They even kill each other over drug deals gone bad. And you didn't tell us whether the African Americans and Hispanics who were convicted were just a bunch of lovable stoner dudes who were too herbed out to keep from getting caught, or whether they were also doing some of this serious stuff. Don't we need to know that to be able to compare and to see whether discrimination is going on?

Honey, a girl's reputation is her most important asset. Don't lose it.

OK. Move on dot org. I've gotta ask ya -- have you ever had to hire somebody? 'Cause I gotta say, this thing sure doesn't read like it.

All this nice talk about how an employer should take into account how serious the crime is, and how it's relevant to the particular job applied for, and when the perp stops being at risk for being a recidivist, individualized assessments, reviewing sociological studies, validation under the Uniform Guidelines on Employee Selection Procedures, "less discriminatory 'alternative employment practices'" even if the criminal information is "job related and consistent with business necessity" . . . and on and on and on, blah, blah, blah, blah, blah, zzzzzzzzz --

Sweetie, I know your heart's in the right place, but an employer can't go through all that malarkey with everybody who applies for a job! You know what Ann Landers used to say, may she rest in peace: Wake up and smell the coffee, Buster!  Employers have to use the information they can get to predict who they think will do a good job. They do the best they can. Sometimes criminal information can help. It seems like you're trying to make it so hard for them that they won't use it any more. You wouldn't do that, would you?  :-(

Then you start talking about other laws, and I was with you when you were talking about how you're still allowed to comply with a requirement of federal law. So it's ok to reject somebody if they pled guilty to wearing a shoe with a bomb in it on an airplane and can't get a federal security clearance that they need for their job at the nuclear power plant. Glad to hear it.

But you lost me again when you started talking about state and local laws, and how you can't use them as a defense. I get that Title VII would "preempt" state or local laws that allow employment discrimination or even require it, like that old law in Virginia that wouldn't let people of different races get married except that it wasn't an employment law. But do you really think Title VII preempts state laws that simply require criminal background checks for certain jobs and disqualify everyone -- of any race -- who's been convicted of certain crimes?

Sweetie, I feel like you're overreaching here. If you got slapped down by a court, it would break my heart. You know I'm serious.

You're saying that an employer has to disobey its state or local laws on criminal background information unless it can prove that the state or local requirement is "job-related and consistent with business necessity" . . . ?

Don't answer that -- I don't think I want to know.

Time's getting away from me, and I have to run some errands. Eric Meyer has five good "takeaways," and Phil Miles has links.

And, don't tell me, I already know Daniel Schwartz and Jon Hyman and even my own colleague David Phippen think you could have done worse, and I'm sure they are right. But I always thought you held yourself to a higher standard than that, young lady. Do you want to do just the bare minimum, or are you a cut above?

*Whew.* OK, now I feel better. You know I get on your case only because I love ya.  :-)

So, how is everything else at the EEOC? We really should go out for drinks soon. If you're up for it, give me a buzz. (Hahaha -- get it?)

Robin

xxxooo

P.S. Photos from Wikimedia Commons (public domain).

In that lazy, hazy, like

Kind of crazy, like

South American way?

"Ai, ai . . . ai, ai . . . have you ever kissed in the moonlight,

in the grand and glorious,

gay notorious*

South American way?"

*Those really are the words to the song.

Down South America Way, © Warner/Chappell Music, Inc., EMI Music Publishing.

Oh, those wild and crazy Secret Service agents. It's bad enough that they patronized ladies of the evening while they were on the presidential security detail to Colombia.

Gives a whole new meaning to the term "secret service," doesn't it?

But it's even worse that one of them allegedly promised a lovely young señorita named "Dania (last name unknown)" that he'd pay her $800 USD . . . but then, after she'd acted in reasonable reliance on his promise to her detriment, told her he was drunk when he promised her the $800 and offered her $30 instead.

The stupidity of THAT, my friends (if true), is astounding. And as we all know, the dispute about sums due and owing caused a row in the hotel lobby, which caused law enforcement authorities to be summoned, and next thing you know we have 11 Secret Service guys being placed out of service. One has already "retired," and one has been fired (and reportedly plans to sue). Another chose to resign. The other eight are still being investigated.

Employers with international operations tell me that this kind of thing is a real problem in two ways. First, we have the "Secret Service syndrome" - normally sober-minded Americans go to another country that is less . . . Puritanical* than the U.S.A. and, next thing you know, they're wearing lampshades on their heads and engaging in other shenanigans that I am too delicate to recount here and that they'd never dream of engaging in here at home.

*DISCLAIMER: Use of the adjective "Puritanical" is not intended as an endorsement of sexual harassment or other abuse, prostitution, or any other segment of the sex industry.

Second is the flip side -- I'll call it the "Dominique Strauss-Kahn syndrome." Foreign nationals from less . . . Puritanical countries come to the United States and think all the behavior that is acceptable (or at least winked at) at home is A-OK here, too -- like going to prostitutes, or kissing or pinching attractive female co-workers as a "compliment," or succumbing to the irresistable charms of the hotel maid. (Actually, Strauss-Kahn is under investigation in Europe, now, too.)

Did you know that in many countries, sexual harassment is not against the law, or is a new concept? It's a fact!

So if you have employees who do a lot of international travel as part of their jobs, or you have foreign nationals coming to work here, make sure they understand the risks of behaving badly, whether it's in the U.S. or somewhere else. Your harassment training should be tailored to your workforce, and if you're "international," you should make sure that your foreign employees understand how things work here (which they may honestly not know unless you tell them -- in my experience, folks from other countries are shocked to find out how . . . Puritanical we are here) and, for everybody, the risks of bad behavior to their families and their jobs.

I'd sure hate to be one of those 11 Secret Service agents having to come home and face the Missus. Not to mention the President of the United States. Ugh.

Photos and art from Wikimedia Commons (public domain).

The U.S. Court of Appeals for the Ninth Circuit* came out recently with a great decision on when "showing up" -- also known as "attendance" -- is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act.

*The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case (let's call her "Miss Ratched") was a nurse in a neonatal intensive care unit at a hospital in Oregon. As you probably know, the NICU is the part of the hospital where they take care of little babies -- and I really do mean little -- usually severely premature, and often having other serious health conditions. (And I'm not talking "FMLA-serious," which includes hangnails, the sniffles, and ennui. I mean the real thing.)

Anyway, Miss Ratched had fibromyalgia and missed work a lot. The hospital -- we'll call it St. Patience for obvious reasons -- tried to accommodate her for years but eventually gave up. They finally told her she would have to move to another department where her attendance wasn't as critical. She said no. In my favorite part of the case, the hospital scheduled a meeting with her to discuss her attendance, and she was absent from the meeting. LOL! Eventually St. Patience fired her for bad attendance.

Pretty brave for an employer in the Ninth Circuit. Maybe our hospital's pseudonym should have been "St. George the Dragonslayer."

Miss Ratched sued St. Patience under the ADA, claiming that she should have been allowed to stay in the NICU and "opt out" of the attendance policy.

And the Ninth Circuit sided with the hospital! Man bites dog!

(OK, sorry, Ninth Circuit. I'm done teasing you now.) The decision actually provides an excellent discussion about when absence from the workplace can be "accommodated" and when it cannot.

Regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it. But it's not an essential function in every case. Some jobs can be performed pretty well at home or on flexible schedules -- for example, writing a blog, and other jobs that entail a lot of computer or "paper" work.

If so, and if telecommuting would help the employee perform the essential functions of the job, then most courts would say that the employer has to consider allowing it as a reasonable accommodation.

But there are a lot of other jobs that really can't be performed at home, duh:

*Where the employee must work "as part of a team."  

*Where the job requires "face time" with clients or co-workers.

*Where the employee must work with items or equipment that are on-site.

The Ninth Circuit said that Miss Ratched's job fell into all three of these categories. The NICU staff had to work as a team. Face time with supervisors, other staff, the babies, and the parents was an important part of the job, too. And, of course, NICUs are full of sophisticated equipment with beepers and flashing lights and such. In addition, the Ninth Circuit found, the nurse's job was not "fungible" -- working as an NICU nurse required training and expertise that was not readily available, even among the nursing population. That meant that it was often hard to find qualified substitutes for Miss Ratched when she called in sick, affecting the quality of the little ones' care. Not to mention the cohesiveness of the "team."

The court also found that St. Patience had gone to extraordinary lengths to work things out with Miss Ratched before it terminated her employment. And, even though the hospital already had a fairly generous time-off policy, the court said, that didn't mean it had to grant even more time off to Miss Ratched.

So, when you have an employee who wants time off or to be able to work from home as a reasonable accommodation, you could do a lot worse than starting with a look at this case. Even if you live in Illinois or New Hampshire or Alabama. Eighty percent of success really is showing up.

(Photos from Wikimedia Commons, public domain.)

A federal judge in Ohio has recently refused to dismiss* a lawsuit brought by a former teacher at a Catholic school who alleged that she was let go because of her pregnancy. (The teacher was not married, and she alleged that she became pregnant through artificial insemination.)

*At this very preliminary stage of the litigation, the judge had to accept as true everything that was alleged in the plaintiff's lawsuit. So it's possible that the ultimate outcome will be different, and we have not heard the employer's side of the story.

The case is interesting because it is one of the first "ministerial exception" cases (if not the first) to be decided since the U.S. Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which I blogged about a while back. (Scroll down to "Hail, hail, Freedonia!")

According to the lawsuit, the plaintiff, Ms. Dias, was a "technology coordinator" for two Catholic schools in the Archdiocese of Cincinnati. Ms. Dias was not Catholic. As technology coordinator, she was responsible for teaching computer to the kids and overseeing the IT systems at the two schools. She did not teach religion and, indeed, was not allowed to teach religion because she wasn't Catholic.

(By the way, have I mentioned lately that she wasn't Catholic? I wasn't sure you got that point.)

Anyway, on a fine Friday in October, Ms. Dias notified one of her school principals that she was five and a half months pregnant. The principal congratulated her and said she did not think the pregnancy would "be a problem." Notwithstanding this rosy prediction, later that same day, the same principal called Ms. Dias back and told her that she would probably be terminated because she was "pregnant and unmarried." The next Monday, Ms. Dias told the principal that she had become pregnant through artificial insemination, not extramarital sexual relations. Then she disclosed her pregnancy to the other school principal, who told Ms. Dias right off the bat that her pregnancy "was going to be a problem" because Ms. Dias wasn't married.

After the schools consulted with Human Resources for the Archdiocese, Ms. Dias was told that she was being terminated for "failure to comply and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church."

At this point, there are a couple of things you may need to know:

*You may have heard that the Catholic Church has some strict rules. Among other things, the Church considers any sexual relations outside of marriage to be a sin. That would include premarital sex, as well as a lot of other things that I shouldn't get into on a family blog.

*You may or may not have heard that the Catholic Church also considers artificial insemination to be a sin. It does.

OK, you needed to know those things before we moved on. So, Ms. Dias filed suit claiming pregnancy discrimination, and the Archdiocese said her suit should be dismissed because of the ministerial exception. And, as you already know, the judge refused to dismiss the lawsuit.

The judge said that the ministerial exception didn't apply in this case because the plaintiff was clearly not a "minister." Although she did work for two Catholic schools, she did not teach religion and wasn't even allowed to do so because she wasn't -- well, you know, and she did not have the title of "minister," and she did not, apparently, perform any "spiritual" function whatsoever.

This made her situation different from that of the Lutheran teacher in Hosanna-Tabor, who was a "called" minister, had religious education, taught religion classes, and led her kids in prayers and devotions.

Well, ok, said the Archdiocese, but Ms. Dias signed a contract agreeing that she would abide by Catholic teaching, so by her own admission she has breached her contract, giving us airtight grounds to terminate her employment. Well, maybe, the judge said, but how would a non-Catholic be expected to know that artificial insemination is a sin? (Heck, your honor, I'll go you one better -- I'd bet that most Catholics don't know that artificial insemination is a sin.) Because the plaintiff is entitled to all benefits of the doubt at this early stage of the lawsuit, the judge said, I have to find in favor of Ms. Dias.

Well, ok, said the Archdiocese, but Ms. Dias is also supposed to be a good example for the students in our schools, and she got pregnant by a means that our Church teaches is a sin. That's setting a bad example. Well, maybe, the judge said, but we have some legal precedents saying that artificial insemination (as opposed to premarital sex) isn't so bad for a church-affiliated school*. 

*The case cited by the judge concerned a school affiliated with the Church of Christ, which (as far as I know) does not have centrally defined religious dogma and probably no specific doctrine on artificial insemination. So this decision may not be very applicable to a case involving the Catholic Church, which clearly does have a hierarchy, centralized dogma, and a specific teaching prohibiting artificial insemination. (If any readers are members of the Church of Christ, your comments on this point would be welcome.)

We also have some precedents saying a religious employer can terminate pregnant women for being pregnant only if they're really sanctioning the -- cough, cough -- activity that resulted in the pregnancy, the judge continued (my paraphrase, obviously!). Put another way, the cases say that it's not ok for a religious employer to simply focus all of its moral energies on female employees who get pregnant out of wedlock. The religious employer has to also fire female and male employees who do the stuff that sometimes causes women to get pregnant out of wedlock. Otherwise, it's pregnancy discrimination. No fair to fire the pregnant unmarried women for being "immoral" while letting the men carry on like . . . bunny rabbits. (Not that the Archdiocese was necessarily doing that, but the judge said it was too early in the lawsuit to tell.)

So, Ms. Dias's case will go forward for now. As far as the Archdiocese is concerned, this shouldn't be the end of the world because it will have plenty of opportunity to develop the evidence and move for summary judgment later. But the case has a good lesson for religious employers: For the ministerial exception to apply, it helps if your employee's job involves something "ministerial."

(Photos from Wikimedia Commons, public domain.)

A loss prevention manager for a major retail store chain -- we'll call her "Loretta" -- had some performance issues in the past but was only five days away from the satisfactory completion of a performance improvement plan. She and a male loss prevention partner were called to investigate a sexual harassment complaint. During the investigation Loretta and her male partner believed that the victim was "holding back." They agreed that Loretta should interview the victim alone. Apparently in response to some leading questions, the victim told Loretta that her supervisor had raped her, and more than once. The victim said that she did not want her husband to know and did not want to go to the police.

Loretta and her partner reported all of the above to their bosses, and Loretta strongly recommended that the company report the alleged rapes to the police. The company declined to go to the cops because the victim didn't want that, but they immediately suspended and eventually fired the alleged harasser/rapist.

Despite this prompt action, Loretta continued to insist that the company go to the police. The company continued to refuse to do so. Loretta was terminated shortly afterward -- according to the company, Loretta violated company policy by interviewing the victim alone, and by asking the victim leading questions.

Loretta, unsurprisingly, sued for retaliation.

So, who wins?

Believe it or not, a federal court in Florida granted the company's motion for summary judgment, and the U.S. Court of Appeals for the Eleventh Circuit, which handles appeals from federal courts in Alabama, Florida, and Georgia, affirmed. No joke.

But Dahlink, how can zis be?

The court applied what is called the "manager rule": The rule is essentially that

• if a manager has no personal interest in conduct that allegedly violates the law, and
• if the manager is acting within the course and scope of her employment in investigating or otherwise handling a complaint,

then the manager's internal complaints may not be "protected activity."

In other words, if the manager is "just doing her job," then her disagreements with the company about how to conduct the investigation, etc., are not legally protected.

In this case, the court found that there was no reason to believe the employer had violated the law (Title VII): The company promptly suspended and then fired the alleged wrongdoer. At that point, of course, there was nothing more to be done to comply with Title VII, or arguably, that could have been done. Title VII does not require an employer to report harassment - even severe harassment - to law enforcement authorities, and especially not if the victim herself doesn't want it reported.

All of this sounds a bit strange, but it makes sense when you think about it. If it's a good thing for employers to have in-house "compliance" employees (and it is, it is!), then they shouldn't have to fear a retaliation lawsuit every time they have a disagreement with someone in HR, or an in-house lawyer, or a loss prevention or other "compliance" employee, about what to do or how to do it.

On a somewhat related note, there are federal cases saying that "compliance" employees are also required to express concerns about allegedly unlawful activity in a way that is "loyal" to the company. For example, telling your boss that you have some adverse impact on your affirmative action plan, and debating ways to remedy the situation, would be "loyal." Making a phone call to the Office of Federal Contract Compliance Programs and singing like a canary about your employer by name is almost certainly not. The courts recognize that, as a "compliance" employee, you are being paid to help your employer, and so you are expected to conduct yourself accordingly. That doesn't mean ignoring or concealing illegal activity, but it does mean expressing your objections and concerns as if you were on your employer's side.

(Cue "The More You Know" here.)

We know how much you look forward to your Friday morning posting here. (Yeah, right!)

Unfortunately, our blog platform had a serious server issue this week that did not get resolved until a little while ago.

So our "Friday" blog post may not be up until Monday. We apologize, and we hope you'll check back with us then.

Thank you, and have a happy April Fool's Day and a great weekend!

(Although this really is not a joke. Cross my heart.)

In what has to be one of the weirdest ADA cases I've seen, a woman (let's call her "Gladys") was hired as a temp for a tech company in Seattle (let's call it "Initech"). A month later, Initech brought Gladys on as a regular employee. A month after that, Gladys told Initech that she suffered from chronic pain. Initech was like, hey, no problem, we will try to accommodate you.

Um, yeah. That'd be terrific.

Gladys was put on a reduced schedule and was eventually authorized to return to work full-time. Initech assigned her to a shift that ran from 6 a.m. to 3 p.m. Gladys didn't care for those hours. She told a manager that the schedule was stressing her out and depressing her. Then she sent the manager a Facebook message and said that she was spending the whole day at work trying to think of ways to . . . kill herself.

Because Gladys's suicidal ideations were related to her job, Initech (reasonably) determined that she might be a "direct threat" to her own safety if she continued to work there. She claimed in other postings that she had "PTSD*" and felt like her workplace was a "war zone."

*Post-traumatic stress disorder

"Direct Threat"

I don't believe I've ever posted about the "direct threat" defense under the ADA. If an employee's disability causes him to be a "direct threat" to himself or others, it might be lawful for the employer to take appropriate action "against" the employee. For example, the employer might be able to refuse to hire, or to require an employee to take a medical leave, or even to fire an employee.

Or it might not be able to do any of those things. If a reasonable accommodation would eliminate or reduce the direct threat, then the employer would have to try to accommodate.

In determining whether an applicant or employee poses a "direct threat," employers and their medical consultants should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the risk.

Here endeth the lesson.

So Gladys said on Facebook that her job made her want to kill herself. What's Initech supposed to do with an employee like this?

 You can almost see the wheels turning in Lumbergh's head. "Um, yeah . . . maybe we can turn from 'Dr. Jekyll' into 'Mr. Hyde,' and shake her that way. Yeah, that'd be terrific."

*DRAMATIC REENACTMENT*

"Gladys, mmm, yeah, come in. Take a seat. Can we bring you a cup of coffee? Now, mmm yeah, Glads, we are a little concerned about bringing you back to work, since this job makes you suicidal. But the ADA requires that we engage in an 'interactive process.' So we would like to engage in the 'interactive process' with you. That'd be terrific."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process with us."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process. And if you don't, we'll repossess your red Swingline stapler."

"OK! What does that mean, and what do I have to do?"

"Mmm, well, sorry, but since you didn't cooperate in the interactive process, we're taking your red Swingline and firing you. Thaaanks."

*THE ABOVE MAY NOT HAVE ACTUALLY HAPPENED.*

So, Gladys sues, and at some point, both sides move for summary judgment. The court denied Gladys's motion (no surprise there). But the court denied Initech's motion, as well.

The court said that a jury should decide whether Gladys refused to engage in the "interactive process," which would result in the loss of her protection under the ADA, or whether Initech was to blame. Gladys argued that Initech was deliberately setting her up for termination. On the other hand, the court recognized that Gladys might not be, how you say, fit to work. All that is for the jury to decide.

So, the moral of the story is, passive-aggressive tactics are generally a bad policy and don't help employers. In fairness, Initech might not have known what "the interactive process" was either, and was muddling through it with difficulty but in good faith. The jury will -- yeah, you know. In case you might have forgotten, the ADA "interactive process" is fancy-lawyer-talk for a discussion between employer and employee about reasonable accommodation options. That's really about all there is to it.

A few good links: Eric Meyer of The Employer Handbook has a post about a plaintiff who managed to get a court order allowing discovery of the defendant's Facebook page, which is the reverse of what we usually see. And, if you haven't already been there, please get over to Phil Miles' excellent blog, Lawffice Space, for the March Employment Law Blog Carnival -- with a Saved By the Bell theme! Phil, thank you for letting us participate. Finally, many thanks to HR Examiner, which named Phil and me as two of their Top 25 Online Influencers for 2012!

Well, wait a minute. Let me try that again. I'm not skeptical about the existence of the pay gap. I'd be a fool to deny all that cold, hard reality. I just don't think it's usually a result of sex discrimination. Nearly all of the pay gap can be explained by the lifestyle choices that women are more likely to make. Such as the following:

*Until the latest generations of women, entering the workforce later than men.

*Until the latest generations of women, less formal education than men. (For you youngsters who may not know, back in the dark ages, women used to drop out of school to get married. Really!)

*Then and now, interruptions of career to bear and rear children.

*Choosing a "job" instead of a "career" to have more time for family.

*Working fewer hours because of personal/family needs.

*Placing a premium on flexibility rather than money because of personal/family needs.

*Tending to choose cleaner, safer jobs that don't involve heavy lifting, extensive travel, or other "negative" working conditions where the tradeoff may be premium pay.

Now, if you are a female zillionaire CEO or a single mom who is the sole financial support of her family, please don't tell me I'm full of beans. I know there are plenty of women who earn more than their husbands, or even have husbands who stay home and take care of the kids full-time, or don't even have husbands at all. But statistically speaking, women are far more likely to take on most of the "family" responsibility while their husbands focus on being the primary economic support of the family. And, I submit, this explains nearly all of the "gender gap" in pay.

In other words, as I've said before (scroll down to No. 5), I think the "women earn only 81 cents for every dollar that men earn," is a gross exaggeration to the extent that it's used as evidence that rampant sex-based pay discrimination continues to plague our nation.

OK. I hope I have sufficiently disclaimed what is about to follow.

The U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed summary judgment for an employer in an equal pay case.

Before I talk about the case, let me share what we usually find when we audit pay. I've done my share of "compensation analyses," either in connection with equal pay charges or lawsuits, or audits by the Office of Federal Contract Compliance Programs, or sometimes just because the employer wants to make sure it is paying employees in a fair and equitable manner.

What we usually find is a lot of gaps, frequently correlated with race or sex. To put it more bluntly, what we usually find is that the white guys generally are making the most money. But, as we all know, "correlation is not causation." When we probe, we usually find good, non-discriminatory explanations for almost all of the discrepancies. Maybe Joe was hired with 20 years' relevant experience, while Mary was recently promoted from a lower-level position. Maybe Mary had a five-year interruption a few years ago while her kids were in preschool, and hasn't caught up since her return to the work force. Maybe the gap can be explained by some other reason, like Joe is a hard-working, extremely talented, prince of a fellow, beloved by all, and Mary is a rude, clock-watching, incompetent ninny who doesn't even deserve to work when you really think about it.

However, we also frequently find one or two people whose pay is below where it should be and for whom there is no good explanation. This doesn't necessarily mean that discrimination was the reason. But if you're sued or audited by the government, and a pay gap is discovered that you can't explain, a judge or jury, or the government, is going to assume that the real reason was discrimination.

(The good news is that if you find discrepancies like this on your own, it's pretty easy to fix them by making a pay adjustment.)

Which brings us back to this Seventh Circuit case, which contains some good lessons for employers who want to ensure that they're "clean" from an equal pay standpoint. So, let's make the usual Y-shaped incision and perform an "autopsy" of the case, shall we?

(Continued . . .)

The plaintiff in King v. Acosta Sales and Marketing also had sexual harassment allegations, but I no talk about that.

Ms. King was a business manager whose compensation was supposed to be based primarily on sales results. The employer conceded that her results were better than those of most of her peers, so she wasn't like my fictional Mary the ninny. Even so, Ms. King's starting salary was low, and it increased only $6,000 in six years.

Well, you may say, times are tough. Yes, they are. Except that her male peers were getting much bigger increases than she was during those same "tough times." In fact, one male peer, who the company had conceded was comparable in performance, was making about three times as much as she was.

And it wasn't just the plaintiff, either -- almost all of the female business managers had low starting salaries, and got smaller increases without necessarily worse performance.

The company claimed that the women started lower because they had less education and less relevant work experience. Sounds reasonable?

Maybe . . . except that, as the court pointed out, even though less education and experience might explain a lower starting salary, it doesn't explain why she's continuing to get paltry annual increases after she's come in and shot the lights out . . . while the dudes, who aren't any better, are raking it in.

The burden of proof was on the employer to, uh, prove that education and experience were in fact the reasons that the women did so poorly. It didn't help that the guy who set the salaries testified in his deposition that the process was "subjective" and refused to elaborate. 

The court said that Ms. King should have the opportunity to prove that the employer's explanations for the pay disparities "were just smokescreens."

Ouch, baby. Very ouch.

In one last desperate move, the employer argued on appeal that the selection of pay rates was not discriminatory because it was "random." NOTE TO EMPLOYERS: When you have to make this argument, you might as well get out your wallets. Of course, the Court slapped that one down, too. The Court said that, although "random" doesn't equate to "discriminatory," one would expect truly "random" salaries to sometimes give women the advantage. In this case, the women almost all did significantly worse than almost all of the men.

So, Doctor, how shall we avoid this employer's fate?

First, employers should conduct preventive compensation audits to find problems like this and fix them before they become "issues." Once a year is ideal. Less often isn't as good, but anything is better than nothing, as long as you fix the problems you find.

Second, consider doing all pay increases for employees in a given job category at the same time each year, rather than doing them on individual employees' anniversary dates. If you're doing them all at the same time, you will be much more likely to notice without even trying that Jane is getting a pittance in relation to John, so you can take whatever remedial steps are necessary. If you use anniversary dates, be sure you make the extra effort to compare the employee with his or her peers.

Third, be fair across the board. The King case focused on discrimination against women. Sometimes we find that a white male is paid less than it seems he should, compared with his female or minority peers. Even if the person who deserves more money is a white guy, don't hesitate to do the right thing and get him where he needs to be. Sometimes the government looks for "reverse" discrimination, too. Which, as we all know, is also illegal.