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THE DIFFERENCE BETWEEN THEORY AND PRACTICE:
THE REAL WORLD OF EMPLOYEE - EMPLOYER LAWSUITS
As useful as it may be to learn that sexual harassment can be no more than an "unwelcome advance," does that really teach you what does and does not step over the liability line? Every HR manager has a list of "best practices" personnel policies, but does possession of the list of approved policies translate into a working knowledge of how and when to use them?
Our experience in training businesses to avoid lawsuits makes one thing as clear as can be: companies can only acquire a truly functional knowledge of liability avoidance techniques after they learn how the basic principles that seem so understandable when stated in the abstract play out in real life scenarios and, ultimately, within the walls of a courtroom.
With that in mind, here are some very recent, and very illuminating, decisions that put some flesh on the bones of the key legal principles employers need to understand in order to avoid employee lawsuits.
HOW "REASONABLE" DO YOU HAVE TO BE
WHEN PROVIDING A REASONABLE ACCOMMODATION?
Most employers know that under the Americans With Disabilities Act, if an employee with a "disability" (a defined term that has no relationship to its common meaning) needs a "reasonable accommodation" (another defined term that defies understanding) to perform the "essential functions" (ditto...) of his or her job, the employer must provide that reasonable accommodation, or risk substantial damages. From an employer's perspective, the dilemma is always how "reasonable" do you have to be in providing a reasonable accommodation? It is an easy concept to state in the abstract, but what about real life? If an employee needs certain electronic enhancements to use a computer, and if the enhancements cost $1,000, do you have to provide them? $5,000? $25,000? If an employee needs a half hour break in the afternoon to take medication, do you have to provide it? Suppose you are understaffed? Suppose the employee wants an hour break in the morning and an hour break in the afternoon?
In attempting to untangle this knot, most courts have ruled that the employer and the employee must engage in an interactive dialogue - the employee can offer a suggested accommodation, the employer can come back with its own proposal, and the dialogue is to continue until a reasonable accommodation is agreed upon. Liability only results if the employer does not engage in a reasonable give and take.
In a recent case, however, the Third Circuit Court of Appeals may have redefined this process and, basically, found that once an employee proffers a suggested reasonable accommodation to the employer, the employer must accept it without a counterproposal, unless the employer can prove that the suggestion would cause it an "undue hardship" (whatever that means). Read literally, the decision means that an employer who engages an employee in a reasonable accommodation dialogue does so at its own substantial risk.
Here is what happened. The plaintiff, Skerski, serviced cable television wires, and had to climb poles and ladders as a regular part of his job. After about 10 years, Skerski became fearful of heights, and was diagnosed as having a panic and anxiety disorder. His psychologist recommended that he keep his feet on the ground. Skerski's employer at first assigned him to underground cables, but after several years requirements changed and his employer told him that he could not keep his job if he could not climb. So, consistent with the new breed of educated employee, Skerski told his boss that he could resume climbing "with an accommodation" - the use of a bucket truck. The employer felt that was impractical, and sought a dialogue. Skerski dug in his heels and sued under the ADA, claiming that his employer failed to provide a "reasonable accommodation" that he needed to perform the essential functions of his job.
One might have expected the court to rule that Skerski should have engaged in an interactive dialogue with his employer and, having taken a "my way or nothing" approach, he was out of luck. Instead, the court implicitly endorsed Skerski's approach, and the language it used in disposing of the case is scary. The court seems to have ruled (it's a bit murky) that unless Skerski's employer could prove that providing a bucket truck was unreasonable, it had to honor Skerski's requested accommodation without further discussion. Here's how the court stated its ruling (with the key words emphasized): "It is only when the accommodation suggested [by the employee] would constitute an undue hardship that the employer can justify failure to accommodate in that manner." That sentence has put the employment law community into a bit of a tizzy - it has the potential to inject an incredible amount of risk into the employment relationship.
The upshot of all of this is difficult to predict. If you truly think an employee's requested accommodation is unreasonable, do you bet the ranch merely by proposing an alternative? Other courts may ultimately disagree, but for now, here is the message: employers must be extremely careful, and very well advised by counsel, when dealing with reasonable accommodation issues under the ADA. The mines have been planted in the minefield.
NOT EVERY SEXUAL ADVANCE CONSTITUTES SEXUAL HARASSMENT
A female plaintiff worked as an attendant at a parking garage for about a year and a half. Early on, she claimed that the assistant manager sexually harassed her by commenting on her looks, and asking her to spend the evening with him. A few months later, the plaintiff claimed that the assistant manager offered to provide her with extra money to care for her children if she would go out with him. A few months after that, the plaintiff claimed that the assistant manager again propositioned her, and a few months after that she claimed that the assistant manager patted her on the behind when complimenting her for writing a good report. The plaintiff said that she repeatedly complained of the assistant manager's behavior, but the manager did nothing to stop the harassment.
Most employers know that they can be liable for tolerating a "hostile work environment." The legal principle is easy to articulate and remember. But how do you apply it? How hostile does the environment have to be before it becomes a liability problem? This is a real, everyday problem for employers. Do you have to police typical male-female flirting? How far can you let it go? Can you tolerate any boorish or offensive behavior, or do you have to get rid of any employee who crosses the line, even once?
A federal court in Philadelphia recently found that as "loathsome and inappropriate" as the assistant manager's conduct was, it was not enough to provide the basis for a lawsuit. To prove a hostile environment claim, the judge wrote, "the discrimination complained of must be pervasive and severe enough to alter the conditions of the victim's employment and create an abusive working environment." The court stressed that the plaintiff complained of "only" four incidents over an approximate 18-month period, and "only" one instance of unwelcome touching. These incidents, the judge wrote, "may have been annoying and undoubtedly unwelcome, but they cannot be characterized as patently offensive or severe."
Whether or not one agrees with the opinion, it is characteristic of the current swing of the pendulum. Sexual harassment cases will continue to be prevalent, particularly "quid pro quo" cases in which an employee can prove that his or her job was directly affected because of the failure to yield to unwelcome advances and similar conduct. But insofar as "hostile environment" cases are concerned, courts seem to be trending toward the view that the workplace need not be sterile or, even, palatable, and that the law will not intervene until the environment becomes substantially intolerable.
THE POWER OF DOCUMENTS -
If You Can't Prove It, It Doesn't Exist
Here is another example of what we try to preach to the businesses we train (see the August 1, 2001 issue of Avoiding Lawsuits): it is not enough to do the right thing; rather, you have to institute procedures that ensure your ability to prove you did the right thing. In the law, if you can't prove it, it didn't happen. And there is nothing more frustrating than knowing you are right, and not being able to prove it.
The most frequent context in which this simple truth manifests itself is the "my word against your word" battle that forms the core of so many lawsuits. In that battle, documents are the ultimate weapon. If you have documents on your side, you usually win.
It would seem to logically follow, however, that if neither side has documents, the result would be, at worst, a toss up. Unfortunately, that is not so. Repeatedly, judges and juries take the position that if you are a company that (unlike most employees) has the systems and staff to create and retain documents, and if you don't have the documents to prove you did the right thing, it will be presumed that you did the wrong thing.
Harry Dunn, an African-American, was hired by Nordstrom as a loss prevention agent. He claimed that he received a promotion to "internal loss prevention lead" but he was paid less than two white individuals who previously occupied the same position. Consequently, Dunn filed a racial discrimination charge against Nordstrom with the EEOC. Thereafter, Dunn claimed that he was demoted from internal loss prevention lead to an "internal investigator." He then filed a second complaint with the EEOC, alleging unlawful retaliation.
One of Nordstrom's prime defenses was that Dunn was not demoted but, rather, all internal loss prevention leads became "internal investigators" - essentially, Nordstrom contended that it changed the title and duties of the job throughout the company. However, Nordstrom could produce no documents to substantiate this, most likely because management undertook the action without creating the appropriate document trail along the way. Therefore, the case boiled down to a "my word against your word" battle - Dunn alleged that he was singled out for adverse treatment, and Nordstrom said that he was treated like everyone else.
Nordstrom lost that "my word against your battle." Here is the court's reasoning:
Indeed, Nordstrom's apparent inability to produce any documentary - rather than testimonial - evidence relating to the alleged across-the-board demotion of Midwest Region internal loss prevention leads is troubling because one would expect a large corporation to document the decision to demote so many employees.
Judges and juries expect a company to have documents. If the company does not have them, judges and juries question whether the company is telling the truth.
Companies frequently hire us to teach them how to create and keep the right kind of documents. We find that there is substantial resistance to the concept among the ranks of management - no one likes to go through another bureaucratic step that interferes with "doing my job." That resistance fades, however, when managers begin to understand how bad (and, even, how dishonest) they can be made to look in a litigation if they do not have the documents to back up their version of the truth, and that provides a powerful incentive to stick with a reasonable program. Examples like the Nordstrom case will help. The truth is that document creation and retention policies can be a pain, but not an inordinate pain. Modest use of entrenched technologies can help - portable dictating machines, PDA's, e-mail and so on. It takes some adjustments and some training, but the payoff is more than worth it.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
