Gruntled Employees

Gruntled on MSNBC Live

On May 22, MSNBC Live did a story on whether parents in the workplace were getting preferential treatment over nonparents. The fine folks at MSNBC had been perusing Gruntled Employees, and invited me to appear and give the employers' perspective. We actually ended up doing two live segments. The first piece had me facing off with Kim Gandy, the president of the National Organization of Women. Here is the clip (it's 3:50 long), which is copyrighted by MSNBC:

 

Later that day, I went back on MSNBC Live to discuss the issue with Kimarie Rahill McDonald, a New Jersey family lawyer. In this piece (3:58 long), I noted the similarity between today's issues and a similar topic from a 35-year-old Mary Tyler Moore Show episode:

 

(Also copyrighted by MSNBC, and used here under the fair-use doctrine.) I thought MSNBC did a nice job with the topic, and both anchors directed the discussion well.

Note to aspiring TV personalities: it's a heck of a lot easier doing it the second time!

Wage-discrimination claims don't last forever

Late last month, the Supreme Court ruled that wage-discrimination claims are like other discrimination claims under Title VII: they expire in 180 days (or sometimes 300 days — distinction not important here). Now Congress is trying to undo that ruling.

In Ledbetter v. Goodyear Tire & Rubber Co. (PDF), Lilly Ledbetter sued for sex discrimination under Title VII of the Civil Rights Act. She argued that the pay she received over the course of her years at Goodyear was discriminatorily low, and a federal jury agreed. Goodyear then appealed to the Eleventh Circuit, arguing that pay decisions that occurred more than 180 days before she filed at the EEOC were time barred. The Court of Appeals agreed (PDF), and reversed the jury verdict. Ledbetter then took her case to the Supreme Court, which affirmed the Circuit's decision. Justice Alito wrote the opinion, joined by Justices Scalia, Thomas, Kennedy, and Chief Justice Roberts.

According to the decision, Ledbetter argued that earlier discriminatory decisions (outside the 180-day filing limit) carried forward their effects into paychecks delivered during the filing period. In other words, each paycheck was a discrete discriminatory act, rather than the mere result of an earlier discriminatory act (the pay-rate decision). The Court nixed this argument. The Court also noted that Ledbetter made no claim that intentionally discriminatory conduct occurred during the filing period, nor did she claim that she hadn't learned of the pay decisions until the filing deadline had passed. Bottom line, as the Court put it:

[C]urrent effects cannot breathe life into prior, uncharged conduct ... such effects in themselves have "no present legal consequences."

In her dissent, Justice Ginsburg (joined by Justices Stevens, Souter, and Breyer) concluded her argument in Ledbetter's favor with the following:

Once again, the ball is in Congress’ court.  As in 1991, the
Legislature may act to correct this Court’s parsimonious
reading of Title VII.

Now Rep. George Miller (D-CA) has picked up the ball and introduced the "Ledbetter Fair Pay Act of 2007" (PDF), designed to reverse the Court's decision (press release from the House Committee of Education and Labor here). We'll have to see whether Congress decides to punish employers for years-old employment decisions. Employers: call your legislators to put a stop to the Ledbetter Act, or plan on defending stale discrimination claims.

Shout out to Chris McKinney's excellent HR Lawyer's Blog for his post "Congress Responds to Ledbetter Decision," which called it to my attention. Good work, Chris!

No lawyer tricks for defending against sexual harassment

Sexual harassment is the hardest employee claim to defend against. Why? Because it's the claim most likely to make its way to a jury.

When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.

Lawyer tricks, in jaded terms.

For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:

1. the employee's not actually disabled
2. her condition isn't serious enough to meet the disability threshold
3. she's not "otherwise qualified" to perform her job
4. she refuses to accept the reasonable accommodations my client's provided
5. the accommodations needed to allow her to do the essential functions of her job are not reasonable
6. she's already claimed elsewhere that she's totally disabled, meaning she can't work, period

As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.

Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.

The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.