Archive for the ‘Disability Liability’ Category

As a recent decision from the Massachusetts Commission Against Discrimination (“MCAD”) shows, allowing an unwelcome sexualized atmosphere at the workplace can be very costly. And firing an employee who complains of sexual harassment is downright foolhardy, as shown in MCAD, et al. v. Sleek, Inc., et al. (Docket No. 06-BEM-01275) (March 15, 2011). A copy of the decision is attached.

In this case, the Complainant, a male, went to work at the all female Sleek Medspa in Burlington. He was soon exposed (no pun intended) to sexualized comments and joking about clients’ genitals and other body parts (the spa did a lot of body waxing), and an incident of a female superior flashing her breasts or bra to the owner of the company over an internet camera (the Complainant saw only her back). The sexualized comments and joking are really not that surprising, and was likely how the aestheticians blew off steam. It really doesn’t sound that bad, but the Complainant found it unprofessional and was very sensitive to it.

If that were all there was to the story, it would hardly be notable, and may not have resulted in litigation. When the Complainant complained about the behavior, he was promptly fired. This was a big no-no. The Company took a marginal sexual harassment complaint that could have and should have been addressed by cleaning up the atmosphere, and turned it into a significant loss for the Company.

How significant? The MCAD awarded the Complainant $150,000 for emotional distress alone. The emotional distress was not so much from the original incidents, but from the termination and everything that went along with that. The Complainant had been (correctly) advised by an attorney that complaining of a sexually hostile work environment was protected, and that he could not be fired. The company stupidly fired him the next day for a reason that was clearly pretextual. He was devastated by the termination and the resultant loss of income.

The Complainant also recovered over $41,000 in lost wages. And the MCAD fined the Company owner $50,000 because he and/or his companies were repeat offenders of employment discrimination laws. That’s over $241,000, without including interest and costs. Interest on the $191,000 owed to the Complainant is significant, at 12% per annum from the date of filing in 2006. By my math, it adds almost 60%, or roughly $110,000. We’re up to $341,000.

And don’t forget that the company paid its own attorneys, which surely added tens of thousands more to the loss. Let’s conservatively call it a $350,000 loss for a dumb termination that any good lawyer would have vigorously counseled against had they been called. (The company was lucky that the MCAD provided counsel for the Complainant; had he hired private counsel, the Company would have been on the hook for tens of thousands for the Complainant’s legal fees).

Don’t make a $350,000 mistake like this company did. If you have any questions about sexual harassment, a hostile work environment, or terminating an employee, call me at 617.338.7000. By Adam P. Whitney.

Most employers I have spoken with mistakenly believe that any employee can be tested for drugs. Nothing is that easy, especially in Massachusetts. If you want to minimize exposure (to legal liability, that is), you had better have a policy that is narrowly tailored and carefully crafted.

That is because Massachusetts is tougher on employers in this regard than other states are. In Massachusetts, an overly broad drug testing policy will subject the employer to liability for invasion of privacy and, if an employee is terminated for refusing to be tested, possibly for wrongful discharge. The Massachusetts Supreme Judicial Court ruled that peeing into a cup is a private act (yes, judges think about such things) and that your medical information is also private.

This is another area of the law where the employer may have to treat individual employees differently. For example, an employer would be justified to test employees who drive a company vehicle for many miles per year (under certain federal statutes, such as the trucking industry, drug testing can be mandatory; this trumps state law). Also, an employer would be justified testing employees where their jobs are such that being under the influence of drugs would pose a danger to themselves and/or the public. But for other employees who just sit in an office, their privacy interests may outweigh the employer’s interest in a drug-free workplace.

There are several other factors to consider when drafting a drug testing policy. Thus, an employer must retain a knowledgeable employment lawyer. The dollars that you spend on the drafting end could save you tens of thousands for what you might spend on the litigation end if you are sued and have a poor policy. Self-serving? Definitely. But in reality, most employers decide against drug testing after they learn the legal issues involved.

By Adam P. Whitney, 617.338.7000.

The usual advice to avoid discrimination claims is to treat everyone the same. If only life were so easy. For disabled employees, you may in fact have an obligation to treat them differently.

The American with Disabilities Act (the “ADA”) and its state counterpart are a source of continual confusion and consternation for Massachusetts employers. The rules are confusing, even for lawyers. A recent case from the Eighth Circuit Court of Appeals, EEOC v. Convergys Customer Management Group, is illustrative of how an employer can make a mistake. Though not binding on any Massachusetts state or Federal Court, the ruling could be followed by courts here.

In that case, the employer, Convergys, was ruled to be in violation of the ADA when it failed to accommodate and later fired a disabled employee. The employee, who was wheelchair-bound, was often late because all of the handicapped parking was filled. He was also late returning from lunch because the layout of the office made it more time consuming for him to find an open work station (he worked as a call center representative). He explained his difficulties to his supervisors and even suggested some accommodations. The employer refused to grant any accommodations and later fired him. A jury awarded $100,000 in emotional distress damages and over $14,000 in lost wages. The Appeals Court upheld the verdict and faulted the employer for not engaging in the “interactive process” required under the ADA (the ADA is applicable to employers of 15 or more everywhere in the country; Massachusetts has a similar law applicable to employers of 6 or more employees).

The employer’s damages – and surely a great amount of legal fees and costs – could have been avoided with a five minute call to a good employment lawyer. Any good employment lawyer would have explained to the employer its duty to engage in an interactive process and to provide reasonable accommodations. Massachusetts law is particularly strict on the interactive process, so the same type of ruling could be expected here. The employer may have taken comfort in treating the employee like everyone else. But, he was not like everyone else and what makes him different is what is called a protective class.

A similar case came out of the Eleventh Circuit Court of Appeals, Holly v. Clairson Industries, L.L.C. Holly was also a wheelchair-bound employee whose employer had a strict punctuality rule. The employer tried to enforce a strict company policy which stated that disabled employees were “not exempt” from the punctuality rule. The employee was sometimes a few minutes late due to the obstructions in the break room, such as lunch tables being in his way. He was a 17-year exemplary employee and made up any missed time by working through breaks or working late. The trial court sided with the employer, but the Appeals Court reversed. It ruled that the employer could not exempt itself from the ADA by treating everyone the same. In fact, the employee’s job was not time sensitive and precise punctuality did not matter. The case was remanded to the trial court for trial.

The Holly case raises an important point: disabled employees sometimes have to be treated differently than other employees. Employers have to engage in an interactive process whenever an employee needs an accommodation to do his job. The accommodation must be provided if it is a reasonable accommodation. Reasonable accommodations can include many things, such as, as we have seen above, allowing an employee to be late. The more important lesson is to call your employment lawyer when you have any question about these issues and especially before disciplining or terminating a disabled person that may need accommodations.

These are just two of thousands of examples where disabled employees need to be treated differently. This can also apply to emotional-type disabilities, like bipolar disorder. You’ll be damned with expensive legal fees and perhaps a large verdict if you do not carefully consider these issues.

By Adam P. Whitney, 617.338.7000.