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A snapshot of frustration: dinner with an Asian entrepreneur who is successful, smart and savvy. His take on American business: risks taken, rewards received, jobs created. His take on American employment law: job creators penalized, lawsuits applauded, pro-employee laws enacted. It’s a thoughtful analysis but not entirely correct. For each yang of employee entitlement there is a corresponding yin of employee responsibility. Knowing this helps general counsel explain to the C-level executives down the hall that the ecology of the workplace is in balance, soothing their anger, centering their decision-making and mollifying their perspective. Look at a favorite phrase of mine — “otherwise failed to avoid harm,” used in Burlington Industries Inc. v. Ellerth. Those are five sweet words for an employer faced with a hostile-work-environment suit based upon sex, race or age. This defense, sanctioned by the U.S. Supreme Court, allows an employer to argue that it should be absolved of liability, if the employee could have done something to get out of harm’s way but didn’t. And the language — broad, elastic and capable of multiple meanings — lets attorneys work the defense like Play-Doh. It comes in especially handy where there is no policy against harassment or the policy is defective. After all, who could not do at least something to avoid harm? While the Burlington case law is helpful, an employee sometimes needs a nudge to accept responsibility. That’s where the GC’s office comes in. Draft harassment policies that are focused and direct about telling the employee how to avoid harm, such as: “If you don’t receive a satisfactory response the first time you report harassment, you must report your concerns to another member of management or the human resources director.” (Trust me, too many choices paralyze, like the 53 types of mustard at the grocery store.) Now, back to the statutory imposition of responsibility and its mother lode: the Family and Medical Leave Act. For an employee caught in a regulatory web of responsibility, look at Debbie Urban. According to the 5th U.S. Circuit Court of Appeals’ opinion in Urban v. Dolgencorp. of Texas Inc. (2004), she went on leave, and was told by her employer, Dollar General Stores, that she needed her doctor to send in certification that this was an FMLA-qualifying event. She went to the doctor, giving him the form. All was well; or was it? The doctor forgot to turn in the form, and Dollar General fired Urban. It boiled down to this: Whose responsibility was it to ensure that the form was completed and submitted in a timely manner? The 5th U.S. Circuit Court of Appeals said it was Urban’s responsibility; she ended up a day late and a dollar short. The FMLA is no refuge for the passive. Look at Barbara Horelica’s hurting feet. According to Horelica v. FISERV Solutions Inc., decided by San Antonio’s 4th Court of Appeals in 2003, she had surgery on them, telling her employer she had a medical issue she needed to address, but she never elaborated on her condition. She did not return to work in a timely manner, and FISERV fired her. Although her leave should have been FMLA-covered, she said too little to her employer for it to understand that. Because she failed to inform, the appellate court said, her termination was not an FMLA violation. Triggering employee responsibility often takes just a little effort by employers, but a small investment of time yields disproportionate litigation returns. A case in point is Kimberly Cloutier, a cashier for Costco with facial piercings. According to the 1st U.S. Circuit Court of Appeals’ decision in Cloutier v. Costco Wholesale Corp. (2004), when a new Costco policy required Cloutier to remove the jewelry from her facial piercings, she said she was an adherent to the Church of Body Modification — a tenet of which is piercing the body. Wisely, Costco did not go ballistic, essentially saying, “OK, let’s do this: Put a bandage over the jewelry or insert a clear piece of plastic — we will even give it to you — in place of the jewelry.” By doing this, Costco forced Cloutier, as a matter of law, to take responsibility. But, she took a hole-ier than thou attitude (sorry, I couldn’t resist), saying no accommodation would satisfy her religious beliefs. Because religious accommodation is a two-way street, the 1st Circuit tossed her suit out on its ear, presumably a ring-studded one. Brick Wall The statute most attuned to the yin and yang of entitlements and responsibilities is the Americans With Disabilities Act. Baked into it is a requirement that employers and employees engage in an interactive dialogue to arrive at a reasonable accommodation to an employee’s disability. This requires an employee with an open mind, a flexible approach and a thoughtful outlook. As the 5th Circuit held in Loulseged v. Akzo Noble Inc. (1999) when it affirmed dismissal of an employee’s claim after she would not talk to her employer about her accommodation issues, “You cannot negotiate with a brick wall.” ADA claims get dismissed not only when an employee balks at talking, but also if an employee fails to provide medical information or refuses to sign a release to obtain same. The ADA is more yin than yang, and that’s good for corporate America. The ADA, unlike some laws, puts the burden on employees not to take their responsibilities lightly. Section 12205 allows a court to award attorneys’ fees, including litigation expenses and costs, to an employer, if an employee’s claim is frivolous and unreasonable, even if not filed in subjective bad faith. A failure to participate in the dialogue, and a suit filed nonetheless, fits the bill. For in-house lawyers at every level, accountability counts. American culture believes this with fervor. And the law, unlike my Asian client’s belief, condones and nurtures it, with an occasional push from the employer. Seeing this reality pulsating just beneath the apparent, pro-employee surface gives the GC an edge. Take this insight home and sometimes to the bank. Michael P. Maslanka is managing partner of the Dallas office of Ford & Harrison. His e-mail address is [email protected]. Maslanka is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter and Texas Workers’ Comp Reporter .

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