Labor & Employment Insights
Summer 2005

By: Michael Spencer
THE NEW WAVE
by William A. "Zan" Blue

America has always been known as a “melting pot” for people of all ethnic groups and religions. We are currently experiencing a new wave of immigration that has created problems and opportunities for employers in the national origin and religious discrimination areas. National origin and religious discrimination are some of the EEOC’s “hottest” areas right now, and they’ll probably continue to be so.

Every wave of immigrants in American history has encountered discrimination – from the Irish and Germans in the 19th century, followed by the Italians and Eastern Europeans who came around the turn of the 20th century. These earlier immigrant groups, predominantly Catholic, eventually became well assimilated in American society. The latest wave consists primarily of immigrants from Mexico and the Middle East.

Mexican immigrants are almost all Christians – predominantly Catholic, although a significant minority belong to evangelical Protestant Christian denominations. Because they adhere to the “majority religions,” the religious beliefs of Mexican immigrants have been relatively easy to accommodate. However, many are not fluent in English, and they are often perceived as being here illegally.

The image of even the most law-abiding Middle Easterners has suffered greatly since the terrorist attacks on September 11, 2001. Many also present a religious-accommodation challenge because many native Americans have only the vaguest understanding of Islam.

Looking different from the majority, practicing “minority” religions or being perceived as an “illegal” or a “terrorist” creates a powerful brew of social tensions. The workplace, already stressful and full of insecurities, is a place where these social tensions can create major problems of morale, communications problems and perceptions of different treatment. Perceptions of different treatment, of course, are what fuel employment discrimination lawsuits.

For example, in Nashville, the EEOC sued in federal court claiming an employer permitted harassment of Iraqi employees. In the same city, another employer entered an agreement with the EEOC to reinstate and offer back pay to a number of Muslim employees who alleged that they were not allowed to take breaks to say their evening prayers. Nationwide, the EEOC has filed numerous suits on behalf of Arab or Muslim employees, consistent with its practices of focusing attention on what it considers to be the hot issues. The agency also has issued a section of its Compliance Manual concerning national origin discrimination.

The EEOC’s “hot issues”
The most common problems for employers concern observance of religious practices that may be unfamiliar; language issues, such as heavy accents and English-only rules; and harassment by co-workers and a belief that customers prefer not to deal with members of certain groups.

Another paradoxical issue we have seen is discrimination in favor of a particular immigrant group who is perceived to be harder working than native Americans of all nationalities. For example, an employer in North Carolina paid a large settlement after the EEOC found that it was hiring Mexican immigrants to the exclusion of Americans, both Caucasian and African-American.

Here are some of the specific issues, and some advice for employers on how to avoid liability.

English-only. Policies requiring employees to speak English on the job are generally legitimate if there is a good business reason for the policies. For example, in customer service jobs, it may truly be necessary for employees to speak in a manner that is generally understood. On the other hand, blanket prohibitions on speaking Spanish, Arabic, or other non-English languages are generally unlawful.

Citizenship requirements. It is unlawful to require that applicants or employees be U.S. citizens. However, it is lawful to require that they be legally authorized to work in the United States. It is lawful to verify Social Security numbers for applicants, but the verification must be performed on all applicants – not just those from a particular country, or those with foreign accents or unusual surnames.

Religion. Religious issues fall under the category of “too many to name.” For purposes of discussion, I will put them into three broad categories: (1) religious accommodation; (2) religious harassment; and (3) (for lack of a better term) “preaching on the job.”

Religious Accommodation. Most U.S. employers understand that they have a religious accommodation responsibility and are somewhat familiar with accommodating the needs of Jewish or Christian employees. The main problem with accommodating Muslims and other minority religious groups is that employers are not as familiar with their practices.

Religious practices outside the Judeo-Christian mainstream can include wearing head coverings, needing time off to attend services, avoiding certain foods and even places where certain foods are eaten, and even carrying a ceremonial dagger. If there are safety or genuine attendance or customer relations issues, the employer may not have to accommodate. However, employers should keep an open mind and at least make a good-faith attempt to understand the employee’s beliefs and accommodate them if possible.

Religious harassment. Persons who engage in religious practices different from the norm attract attention, and that attention may not be welcome. The harassment issues can range from name-calling to actual physical abuse. Each company must have a policy prohibiting harassment based on all protected categories, including religion, conduct thorough training on the policy (that’s the first thing plaintiffs’ lawyers ask about in a deposition), have an effective procedure for making complaints and a protocol for investigation, and enforce the policy even-handedly.

And, as with harassment based on race or sex, the employer must use common sense. It is not “religious harassment” for a Baptist employee to respectfully ask his Sikh co-worker about his headdress and the reasons for wearing it.

Preaching on the job. Some of the most troublesome cases for employers involve proselytizing on the job. The majority of litigation seems to be “intra-Christian”– involving evangelical Protestants and Catholics. This is not surprising, considering the number of adherents to these beliefs in the United States.

Here the “preacher” typically argues that she has a right to free expression of religion, which includes evangelization. The “preached-at” typically argues that the preaching is interfering with her right to practice her own religion. The courts generally find that it is lawful for an employer to place reasonable restrictions on “preaching” in the workplace. On the other hand, employees are allowed some level of moderate expression of their religious beliefs in the workplace, provided that they do not badger their co-workers. Although one invitation to church may be all right, repeated invitations after the recipient has declined could be a problem. (Think the “one-date rule” in sexual harassment.)

All employers, large and small, should take the time to be aware of these issues and be prepared to deal with them when they arise. And they will arise, because in the discrimination area, religious and national origin claims are The New Wave.

Zan Blue (Nashville, TN) practices in the areas of employment litigation prevention and defense, labor relations, and employment audits, and is head of Constangy’s Nashville Office.

FROM THE EDITOR’S DESK: IS THE ADA DEAD? DON’T BET THE RENT
by Robin E. Shea

After the Supreme Court came out in the late ‘90s and the early part of the “millennium” with several employer-friendly decisions interpreting the Americans with Disabilities Act, many of us wondered whether the law had become a dead letter. Actually, it appears that the ADA is very much alive. The difference is that now it seems to be doing what it was originally intended to do: protect disabled individuals from employment discrimination.

Do you remember what life was like before 1999? Before it gets too foggy, remember all those folks claiming bad backs, depression or epilepsy that could be completely controlled with medication, moderate carpal tunnel, insisting they were “disabled” and demanding their rights?

Now, do you remember those Supreme Court decisions? One said that nearsighted people were not ADA-disabled. Another said that employers could take into account “mitigating measures” (like medicine) in determining whether an individual was really disabled. Another said that the employee had to be “substantially limited” in performing a broad range of tasks. Another said that an employer could protect disabled employees from themselves by refusing to put them in jobs that would endanger them. Another said that an ADA accommodation could not normally override a legitimate seniority policy.

After those eminently reasonable decisions, the ADA-litigation world seemed to fall into a profound silence. And it appears that some employers relaxed a little too much.

Very recently, we have seen some employers’ having to pay big bucks in cases involving truly disabled individuals.

In May, the EEOC won a verdict of $8 million for a blind man who claimed he was refused a number of reasonable accommodations in the hiring process. Wal-Mart also got tagged with a $7.5 million verdict in a case where a 19-year-old man with cerebral palsy claimed that he was unceremoniously dumped from his job as a pharmacy assistant and required to gather shopping carts in the parking lot instead.

The 1999 Supreme Court decisions rightfully eliminated most of the "phony-disabled" ADA claims. But the wise employer will not forget that the ADA still protects individuals with real disabilities. And isn’t that the way it should be?

Robin E. Shea, Editor—Winston-Salem, NC

WHAT THE HECK IS A “ZUBULAKE,” AND WHY SHOULD YOU CARE?
by Michael Spencer

“Zubulake! Spoliation! Zubulake! Spoliation!” he screams.

You wake up and realize your company is being sued and you are in a courtroom. A little pudgy man is screaming, and stomping his foot. You look away and realize the judge is glaring at you and your lawyer. Your lawyer, seeming a bit ill, turns to you to translate.

“Zubulake/Spoliation is a battle-cry of a plaintiff’s lawyer,” she whispers. “It means that your company did not maintain the electronic data concerning this plaintiff’s employment with your company.”

You still do not understand.

She continues, “Do you not remember the EEOC charge and the letter from the plaintiff’s attorney demanding that you preserve all relevant electronic data?” Vaguely you recall some of these things.

"Remember the letter I also sent to you and the calls I made to you about a case called Zubulake and the preservation of electronic data?” Now she seems perturbed with you. You think back to telling your technology guru something about preserving electronic data.

She shakes her head – one of those “this hurts me more than it hurts you” looks. “The court has the option of giving a jury instruction adverse to you, which basically means the plaintiff wins and you lose and you lose big. A neutron bomb, if you will.”

The attorney for the other side continues huffing and puffing, and you think back to when your company decided to hire a technology team to update your computer network. This team made your computer systems run efficiently. E-mails, billing, databases, word processing worked seamlessly. Ahh, it was beautiful.

The technology manager instituted a 30-day purge process for all e-mails. You did not really care when e-mails were purged, and your technology manager said that it must be done. So you signed off on the policy.

The manager said that such a purge would prevent an overload on your server and maintain the efficiency of your entire network. “Ummm. Whatever. Sure,” you replied.

Well, any network has its periodic and inevitable crashes, and yours was no exception. But overall, your system worked and put you ahead of your competition. With confidence you ran your business.

Then you recall getting that letter last September from the Equal Employment Opportunity Commission. That employee you fired, Schmidt, was claiming age discrimination. You also got a letter from his lawyer here demanding the preservation of all electronic data involving Schmidt.

You forwarded the information to your human resources executive. That’s her department, not yours. You have to run the business.

A month passed, and the EEOC issued one of those “Right to Sue” letters. (That meant you won, right?) Another month passed, and Schmidt sued. You finally referred the case to your attorneys.

Then your attorney called, asking how your electronic information was stored and telling you that it must be preserved. Yeah, yeah, yeah. Your attorney also forwarded a letter to you stating the same thing. You sent the letter to your human resources executive, who, frankly, had more important things on her plate. She finally touched base with the technology manager, who reminded her of the 30-day purge policy.

Eventually, your human resources executive mailed a letter to your attorney with a copy of the 30-day policy. You then received several calls from your attorney (probably needed some billable time that month!). You really didn’t have time for her, and you never heard of this “Zubulake” fella. You weren’t worried because you knew that Schmidt had no case. He was fired properly and in accordance with all applicable laws.

A month later, Schmidt’s lawyer requested all electronic data, including e-mails relating to Schmidt, dating back to September two years ago. Your technology manager told the attorney that this is impossible, since all e-mails were purged on a 30-day basis.

So, here it is, January, and you have electronic data going back only one month – to last December. What’s the big deal? You’re not worried because your policy for purging e-mails has been clearly stated since last September. Maybe the lawyer forgot. She’s only been told the policy twice – maybe the third time will be a charm. With a memory like hers, maybe it’s time to get a new lawyer.

Well, no, you can’t very well fire her today, not while you’re sitting in the courtroom. You again point out, very slowly and patiently, your company policy of purging e-mails once a month. She gives you that look again and says, “You should have returned my calls. Your policy is not going to mean very much today.”

* * *

This scenario illustrates an emerging issue facing companies and the preservation of electronic data. Zubulake v. UBS Warburg is a federal case dealing with the obligations of a party to maintain electronic data relevant to a lawsuit. “Spoliation” is the failure to preserve evidence.

The case is a warning to employers named in lawsuits to coordinate with those who maintain their electronic data.

The court in Zubulake held that failure to preserve electronic evidence would be subject to a harsh penalty—the court could give an instruction that jurors are to assume the company destroyed evidence that was damaging to its case.

Oh and by the way, the jury recently awarded Mr. Zubulake $29.3 million.

In order to avoid some of the pitfalls of Zubulake, here are some suggestions:

  • Discuss with your IT management the best means of maintaining electronic data as soon as your company becomes aware of a charge or lawsuit
  • Emphasize to your IT management the legal importance of maintaining such information
  • Develop a means to word-search electronic data for information that may be relevant to your case
  • Create a strategy for getting copies of your electronic data to your counsel for purposes of litigation. This is by no means an exhaustive list of precautions to take in a Zubulake world; however, it is a start and will help alleviate many of the problems a company may face in modern litigation.

Michael Spencer (Nashville, TN) practices in the areas of litigation prevention and defense.

GETTING TO KNOW US

KEN CARLSON (Winston-Salem, NC, employment litigation prevention and defense, wage and hour, certified mediator) received his bachelor’s degree in English from the University of North Carolina, his law degree from Wake Forest University and his Master of Divinity from Yale University. Before becoming an attorney, Ken was a newspaper reporter and worked as Manager of Public Affairs for Piedmont Airlines. Ken is also an adjunct professor at Wake Forest University School of Law, current editor of the NC Bar Association’s ADR Section newsletter, and past editor of the NC Bar Association's Labor & Employment Section newsletter. He was named to the “Legal Elite” in employment law (2004 and 2005) of North Carolina Business magazine. He is also a frequent instructor at CLE programs and has written numerous articles on employment law, trade secret and non competition issues. In his spare time, Ken enjoys most outdoor sports, backpacking and camping. He and his wife, Melanie, have three daughters.

TOM DAVIS(Birmingham, AL, employment litigation prevention and defense) received his bachelor’s degree in political science and philosophy from Emory University and his law degree from Samford University, Cumberland School of Law. He clerked for a federal judge before coming to Constangy. Tom is a board member and past president of the Rotary Club of Birmingham, Sunrise, and has been on the board of several community organizations, including the Harbert Center and the Alys Stephens Performing Arts Center. Recently, Tom was named one of the best lawyers in America by Chambers – Best Business Lawyers (2005). When he is not practicing law, Tom enjoys fishing, golf and snow skiing. He also ran the Marine Corp Marathon in 1995. He and his wife, Paige (also a lawyer), have three children.

KRISTIE SMITH(Macon, GA, employment litigation prevention and defense, affirmative action) received her bachelor’s degree summa cum laude from Talladega College, where she majored in English/Journalism and minored in Business Administration. She taught language arts at a middle school in the Detroit Public School System and then enrolled at Temple University School of Law, where she received her law degree. When she is not practicing law, Kristie is an avid movie critic, and also enjoys reading and attempting to knit.

MARK FLORA (Austin, TX, employment litigation prevention and defense, labor relations) received his bachelor’s degree from Hillsdale College and his law degree from Michigan State University. Mark is a Fellow in the College of Labor and Employment Lawyers. He is listed in Best Lawyers in America, and has been named a “Texas Super Lawyer” by Texas Monthly every year since the inception of that listing. When he is not practicing law, Mark enjoys hunting, fishing, shooting clay targets, and motorcycles. Mark and his wife, Marcy, have journeyed by motorcycle more than 50,000 miles throughout the Southwest. They have three grown children, all living in Texas.

NANCY LEONARD (Kansas City, MO, employment litigation prevention and defense) received her bachelor’s degree in Journalism from the University of Missouri and her law degree from the Washington University School of Law. Nancy is a member of the Association for Women Lawyers of Greater Kansas City, the American Bar Association, the Kansas City Metropolitan Bar Association, the Human Resource Management Association of Greater Kansas City, and the Earl E. O'Connor Inn of Court. When she is not practicing law, Nancy enjoys volunteering at Wayside Waifs, Kansas City’s Humane Society, working with dogs and potential adopters and spending time with her own dog and two cats.

QUARTERLY QUIZ
Mohammed likes to read his Quran in the canteen during his lunch period. His atheist co-worker walks by, is offended at the religious material in a public area of the workplace, and reports Mohammed for religious harassment. A week ago, you fired Tomcat for reading a Playboy magazine in the canteen. A female co-worker had walked by, seen the magazine, and reported him for sexual harassment. Since you fired Tomcat, and since your harassment policy applies to religion as well as sex, should you fire Mohammed?

ANSWER:
No. Religious harassment is in a special legal category because the law protects the rights of employees to be free of discrimination because of religion. There is no law protecting the right of an employee to read a sexually explicit magazine, but employees are allowed some reasonable practice of their religion in the workplace – provided that they meet the legitimate requirements of the job and do not badger their co-workers (for example, by unwanted preaching).

REASON PREVAILS…
It is in your nature to be fired, ya big busybody. A federal court in New York upheld the termination of an employee of a brokerage firm who was terminated for accessing her co-workers’ confidential information without a valid reason. “It is in my nature to be curious,” said the plaintiff. She claimed that she was terminated because of her race and age.

It’s not fair, I tell ya! You don’t fire your young thieves! A federal court in Kansas dismissed the age discrimination claim of a mechanic who was fired at age 51 for stealing from his employer.

No First Amendment right for cops to sport Aryan Nation tattoos. Five police officers in the City of Hartford had spider web tattoos on their arms. The police department learned that the spider webs were symbols of the Aryan Nation, and asked the officers to cover their tattoos while on duty. The federal court in Connecticut found that the police department had not violated the officers’ due process rights. Even if the officers had not realized that the tattoos were racist, the court said, the city had a rational basis for believing that the tattoos, if displayed, would inflame racial tension.

Elimination of “Motown Monday” is not race discrimination. And complaining about it is not “protected activity,” either, said an eminently sensible federal court in Pennsylvania. By the way, did we mention that the plaintiff in this case was white?

Violent union member actually loses job! This column, alas, frequently features labor arbitrators who return violent employees to work. Well, here is some good news — a court in Rhode Island had the guts to overturn an arbitrator’s decision reinstating an employee who had disappeared from his job for several months and, while away, made several threats against his employer and his boss — a Catholic priest. The judge said, “This court refuses to endorse [the] arbitrator’s ‘ostrich’ mentality towards dangerous and abusive workplace behavior whereby serious threats of violence or intimidation are minimized or ignored rather than dealt with decisively before a tragedy occurs.” If you’ll pardon the pun, AMEN, Judge Porcaccini!

Nice bank. A bank teller was fired, allegedly for lending $10 of her own money to a homeless man while she was off duty. A federal court in New York, probably correctly, found that the evidence of an alleged policy violation was sparse, and the employee claimed that she was really fired because she was an ordained minister and pastor. The court allowed the employee’s religious discrimination claim to go forward, while dismissing a number of her other claims.

Nice boss. A court in Montana correctly held that it was quid pro quo sexual harassment in violation of the state Human Rights Act for a motel manager to tell a 16-year-old girl applying for a maid position that prostitution would be one of her—ahem—“deliverables.” (In fairness to this manager who deserves none, it should be noted that the girl was not blameless—she apparently cooperated until her mom found out and called the police.)

REASON FLAILS…
Grrrrrr . . . A federal court in Virginia, applying California law, held that a complaint about the death of a lion in the circus could form the basis of a wrongful discharge/public policy claim. The public policy arose from California’s laws against animal cruelty and the federal Animal Welfare Act.

“Winning” is not a legitimate job expectation for a coach, court finds. A hockey coach with a five-year contract providing for termination only for “cause” was held to be entitled to keep his job despite an 18-35 win-loss record, and a “gate” decline to about 1,000 fans per game; followed by a 1-6 win-loss record the next season. To be enforceable, the majority said, the contract would have to require a specific win-loss expectation.

More from the totally messed-up “religious discrimination” front. A federal jury in Texas awarded $35,000 to an employee of a public school system who was denied a promotion to assistant principal because her two kids go to private religious school. No disrespect to private religious schools, but doesn’t it seem that the public school system ought to be able to expect its administrators to send their kids to public schools?

ADEA WAIVER RULE CLAIMS ITS FIRST VICTIM
In the Spring/Summer 2001 edition of Labor & Employment Insights, we sharply criticized an EEOC regulation that limited the relief that employers could seek for breach of waivers of age discrimination claims under the federal law.

Now it appears that the regulation has claimed its first victim in the courts—in the case of Thomforde v. IBM Corporation (8th Cir. 2005). During a reduction in force, the plaintiff (among others) was terminated and was offered a severance package. The agreement contained one paragraph that was a complete release of all claims. Another paragraph specifically stated that the plaintiff was giving up his right to assert ADEA claims, among others. But then a third paragraph said that IBM could recover damages and attorneys’ fees in the event that the plaintiff sued in breach of the release—with an exception for ADEA claims.

The plaintiff, understandably confused, asked IBM whether he could sign the release and still sue for age discrimination. IBM’s counsel refused to answer and referred the plaintiff to his own attorney, who advised him that he could. Based on his attorney’s advice, the plaintiff signed the release, accepted the severance, and then sued for age discrimination under the ADEA. IBM moved for summary judgment, and the district court agreed, but the U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas) reversed—which allows the plaintiff to take his age claims to trial.

The Eighth Circuit was probably correct because the release language was so confusing. The real culprit is the EEOC, which issued these regulations—they essentially require that release language be this confusing unless an employer wants to completely surrender any defenses to ADEA claims or be a “test case” in the courts. The moral of the story is, if you have this confusing language in your severance agreement (and you probably do), don’t expect to have a defense against an ADEA claim based on a waiver.