There are two types of employment cases: those teaching empowerment and those illuminating disaster. Let’s talk disaster, the stuff that gets burned into our neural pathways, imparting lessons learned and never forgotten.
Starting close to home, E.E.O.C v. DynMcDermott Petroleum Operations Co. (5th Cir. July 26, 2013), a tale of ill-considered emails — very ill-considered emails. The 5th Circuit laid it all out in reversing summary judgment for an employer in an age discrimination and ADA associational discrimination case. What was the best evidence for the plaintiff? Three emails sent by the decision maker to his boss: “(Others) wanted to hire (the plaintiff) permanently . . . (1) I just put the nix to this for the following reasons . . . .(2) His wife has cancer and requires and (sic) lots of his time at home; (3) He’s at least 56 and has his own medical problems . . . I need to have someone that will be here for a long, long time.”
Space prohibits reciting the other two, but you get the idea. The boss never disavowed them, but then again she claimed not to have received them. Also, the email was captioned “confidential” and recited “I can only tell you.” Lessons: Informality of the medium does not excuse imprecise expression; managers must disavow animus comments at once; and succession planning should focus not on age but knowledge management.
Here’s another life lesson from disaster: If you are wrong, be sure to admit, resolve, and move on. The 6th Circuit set out the unfortunate facts in Thom Jr. v. American Standard, Inc. (6th Cir. 2012). Carl L. Thom Jr.’s thirty-six year career at the company could be summed up in this tombstone visual: Hired: July 16, 1969; Fired: June 17, 2005. He went on FMLA leave for a back condition and based his return date on the “rolling method” permitted by the FMLA, but was fired with two weeks of leave left to go for being AWOL. Huh? His employer was using the calendar method without telling him, and which shortened his leave time. The law: If the employee is not told which method is being used then the one most favorable to the employee is used. In this case, it was the rolling method.
The appeals court affirmed summary judgment to Thom, but also said (disagreeing with the district court) that he also was entitled to liquidated damages which serve as a penalty. Here is a restrained appeals court: “The company’s obdurate refusal to correct an obvious mistake that constituted a wrongful discharge of this 36 year employee reinforces the case for liquidated damages . . .” The end result was around $500,000 in damages plus the company’s own attorney fees. Lesson: Take a breath when sued or a demand letter is received, decide if there is maybe something to the employee’s case, and then act accordingly.
And for a lesson regarding pesky employees who insist — just insist — on their legal rights, peruse EEOC v. AutoZone, Inc. (7th Cir, 2013), a 7th Circuit case affirming a jury verdict for a plaintiff that included punitive damages. The opinion lays it out. John Shepherd worked as a salesman at an AutoZone store and severely injured a pre-existing back condition while mopping the floor (part of his duties). He asked HQ for an accommodation prior to the injury but none was forthcoming. The EEOC sued, and the jury found an ADA violation. Here’s the court summarizing the testimony of the company’s lead disability coordinator: “Her testimony suggested that she was dismissive of Shepherd’s request for an accommodation” and that “when asked whether she could recall having considered any potential accommodations that would address (Shepherd’s) limitations,” she answered “I think it is something that I would have addressed. Not always, though.” The court also noted that other AutoZone employees were frustrated with Shepherd’s “penchant” for raising his back issues. And the one final piece of the puzzle, likely the one driving an award of punitive damages: the lead disability coordinator did grant him an accommodation but the letter was sent three days after the disabling injury that knocked him out of work and led to his termination. Lesson: Listen, no matter how hard listening may be.
Next up is EEOC v. Service Temps Inc. (5th Cir. 2012). The background is as follows. Deaf applicant applies for a warehouse job, manager allegedly says that it is too dangerous for a deaf person to work in a warehouse; she protests, pointing to her previous experience. No dice — jury verdict for the EEOC with an award of punitive damages. Company argues we did not hire him to discriminate in violation of our policies and he was essentially on a “frolic of his own.” The court: you hired him to hire, so you’re stuck with his hiring decisions. Lesson: Yes, “one bad apple” can spoil the barrel, so make sure you train, train, train.
Finally, a few words on diversity in the workplace from the 7th Circuit and its opinion in Adeyeye v. Heartland Sweetners, LLC (7th Cir. July 31, 2013). Sikiru Adeyeye worked in a warehouse position for his employer. He wanted four weeks off (one week vacation and three weeks unpaid leave) to return to Nigeria for his father’s funeral. As the oldest child and only son, he was required to participate in a variety of funeral ceremonies, including killing five goats. His failure to do so would allow the spirit world to descend upon his village and harm its children, including possibly taking their lives. Well, let’s just say, the request was denied.
He went anyway, was fired upon his return, and sued for religious discrimination. In reversing summary judgment for the employer, the court cut to the quick: “We recognize, of course, that the religious beliefs and practices Adeyeye referred to are not as familiar as beliefs and practices closer to the modern American mainstream. But the protections of Title VII are not limited to familiar religions.” Yes, his beliefs constituted a religion under American law. Lesson: It’s not what you don’t know that hurts you, but what you think is so that isn’t.
Here’s the most important lesson: Disasters can happen to any of us. It’s so easy to lose your way. What is the cure? Don’t pretend to know all the answers, understand mistakes are almost always correctable, and embrace a humble mind set. The iceberg is avoidable.