Justice is Blind? Fired Blind Barber Awarded $100,000 for Disability Discrimination

 

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“Beware of the young doctor and the old barber” – Ben Franklin

Although common sense may have been on his side at the time, if Ben Franklin voiced his sentiment in the workplace now, he would likely face and lose an age discrimination case.

Case in point – a legally blind barber sued his former barber shop claiming it terminated him because of his disability after he had tripped over a customer’s legs and tripped over a chair in the waiting room (all in the same day).  The Massachusetts Commission Against Discrimination awarded the “blind barber” (as his loyal customers called him) $100,000 in damages.

The case has many lessons for employers:

Don’t assume you will win every lawsuit.   There are no “slam dunk” legal cases.  You need to show up and put on a solid defense.  Here, the employer hurt his cause by not attending several hearings.

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The facts, not just “common sense,” matter.  Sometimes the law doesn’t seem to comport with common sense.  One would think eliminating the risk of having a customer’s ear cut off  (much less a horrible haircut) would be a legitimate reason to terminate.  Would you want this?

 

BUT the barber had passed his state board exam, worked for a year without incident, and had customers who knew he was legally blind and didn’t care.  Those facts mattered more than the “common sense” fear of a blind person wielding sharp objects.

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Don’t play doctor.  An employer dealing with an employee with a disability should not presume or make assumptions about the effects of a person’s disability on their ability to do the job.  Here, the employer’s defense would have been greatly bolstered if it had obtained a fitness for duty exam by a qualified medical professional that determined the employee could not safely perform his duties and there was no accommodation that would enable him to do so.

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Timing  and optics are critical.  The employer purportedly did not know until the “day of great tripping” that the barber  was visually impaired.  It then immediately fired the employee, claiming (after the fact) that the employee “had not been pulling his weight.”  The “optics” simply do not look good (pun intended).

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Get your ducks in a row.  An employer seeking to terminate the employment of an individual in a protected classification should, if at all possible, issue written progressive discipline beforehand.  Apparently there were no prior written warnings in this case.  As the employer had never previously fired another non-disabled barber for simply tripping over a chair or a customer’s legs, the whiff of discrimination in the blow dried (h)air was strong.

 

Lies, Damn Lies and (EEOC) Statistics

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“98% of all statistics are made up”  ~Author Unknown

On February 4, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2014 Enforcement and Litigation Data”  report (“EEOC Report”).  The EEOC Report, chock full of statistics regarding employment discrimination charges brought against employers under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other Federal statutes, is a statistician’s dream.

As Mark Twain reportedly said, however, “facts are stubborn things, but statistics are pliable.”   Perhaps not surprisingly then, the EEOC Report can be interpreted to contain good and bad news for employers:

Good news:  The total number of discrimination charges filed against employers actually fell almost 5% in fiscal 2014 from the year prior.
Bad news:     There were still 88,778 EEOC discrimination charges filed against employers in 2014. (This does not count state and local charges).

Good news:  In 2014 the EEOC dismissed 65.6% of the discrimination charges during the investigation stage.
Bad news:     In 2014 the EEOC recovered over $318 million from employers through its enforcement, settlement and litigation efforts. 

Good news:   In 2014 age discrimination charges dropped almost 20% from their peak in 2008.
Bad news:     Retaliation claims reached an all time high, comprising nearly 43% of all discrimination charges.

Good news:  The EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and no settlement is reached.
Bad news:     The EEOC filed 133 “merits” lawsuits across the country, and claims a 90% success rate at resolving matters in district court.

Hopefully 2015 will only bring your company good news.  Decrease the possibility of bad news by adopting some human resources “best practices”  found here and here.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws 

 

Two More HR Mistakes To Avoid

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Having just touched the tip of the HR iceberg in my recent post  “Avoid these 3 Common HR Mistakes,” let’s dive a little deeper. Below are two more common mistakes made by companies and their human resources professionals:

Mistake #4: Failing to preserve key evidence.  Every terminated employee poses the risk of future litigation. Consequently, take steps to preserve crucial evidence. To the extent possible, save all employee voice mails that involve statements of: (1) quitting; (2) insubordination; (3) threats of violence; (4) profanity; and (5) excuses for absences unrelated to any disability (if you terminated the employee for absenteeism). Similarly, print and save screen shots of employees’ texts and social media postings, particularly if the contents reveal employee misconduct. Finally, always keep a signed and dated copy of the termination letter, and save the employee’s personnel file for at least 3 years.

Mistake #5: Failing to keep quiet. When it comes to discussing employment terminations, the less said the better. Never talk with a lawyer representing an employee. Generally, anything you say is evidence that will be used against you. For the same reason, don’t talk to an employee’s family member about their situation – he/she is not the employee. Don’t talk with anyone from a government agency unless your lawyer is present. Don’t tell individuals who do not have a “need to know” why an employee was terminated; if you can’t later prove the reason(s) for the termination you may face a defamation claim. Finally, be careful what you write in emails. Do not: (1) refer to an employee’s protected characteristics (such as race, age, gender, sexual orientation, religion, disability, etc.); (2) refer to an employee’s threat of a lawsuit; or (3) call the employee derogatory names (including “troublemaker”). Emails can and will be discovered in the course of litigation, and can be highly damaging to your case.*

Navigate around these legal icebergs in order to avoid sinking your case.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPAs’ October, 2014 magazine, The Bottom Line.

 

 

 

Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

Legally Lethal Employment Interview Questions

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Most employers are aware that there are numerous obvious questions that are simply “off limits” and should not be asked of an applicant during an employment interview.   For example: How old are you?  Do you have a disability? Are you pregnant?

But, there are many other questions that, on their face, many not appear to be discriminatory, but are still legally troublesome.  These loaded questions either (1) imply that a protected characteristic will be a factor in the hiring decision, or (2) will elicit information that will put you on notice that the individual falls into a protected classification.  Unfortunately, if you don’t hire the applicant, he/she will assume his/her answer to one of these questions was the primary reason for being rejected, and file a discrimination charge.

Here’s several legally risky questions one should avoid asking during an interview:

1.  “Do you have kids?” Similarly, “Are you planning on having kids?”  “What kind of childcare arrangements will you make?”  Problem: gender discrimination; pregnancy discrimination; “caregiver” discrimination.  Do you ask this of all applicants, or only female applicants?

2.  “Your last name is so unusual.  What nationality is it?” Problem: national origin and/or ethnicity discrimination.  Do you ask caucasian applicant Michael Smith this?  Nothing good can come from the knowledge you obtain from this question. Control your genealogical curiosity, and don’t ask.

3.  “Is your spouse ok with moving to _______ for the job?” Similarly, “Will your spouse be ok if you have to travel a lot for the job?” Problem: gender discrimination; sexual orientation discrimination; marital status discrimination. Do you ask this of all applicants, or only female applicants?  What if they refer to their “partner” of the same gender, or that they’re divorced? Now you have knowledge of something personal that is irrelevant to whether the applicant can do the job.  Given that some states prohibit sexual orientation and marital status discrimination, in addition to gender discrimination, you face a triple threat. 

4.  “What year did you graduate from high school / college?”  Problem:  age discrimination.  Do you ask this of all applicants, young and old?  Or just those who look older? One can easily  approximate the applicant’s age with the knowledge of a high school and/or college graduation date.  A savvy applicant will assume you asked it to figure out how old he is, and suspect age discrimination is at play.

5.  “Have you ever been arrested before?”  Problem: race discrimination; arrest/conviction record discrimination.  The EEOC has taken the position that asking about arrests and convictions may lead to a discriminatory “disparate impact” on minority candidates.  Generally, asking about a past arrest that did not result in a conviction is very risky.  Several states and cities also have prohibitions on what can be asked regarding an applicant’s arrest and/or conviction record.    Employers should be aware of any state and local laws before asking these questions.  

Answers to the above questions are generally not relevant to whether the applicant can perform the job’s essential functions.  Bottom line – if there is no business reason to ask them, and often only leads to bad things (i.e. a lawsuit), don’t ask them.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
             @wagelaws

 

 

 

 

 

If Your Employee Does This … You Might Be Getting Sued

“If you’ve ever had to remove a toothpick for wedding pictures, you might be a redneck.” 

-Jeff Foxworthy

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Remember Comedian Jeff Foxworthy’s “you might be a redneck” jokes?   They were tell-tale signs of human behavior that revealed a person was a classless and/or clueless hick. They were funny because you either knew someone who acted like the character in the joke, or could easily see someone behaving that way.

But, my human resources (“HR”) and management friends, did you know that there are also tell-tale signs of employee behavior that reveal that your company will likely be sued?

So without further ado (and with apologies to Mr. Foxworthy), put your hands together and give a warm HR welcome to this Edition of  “You Might Be a Redneck Getting Sued”:

1. If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning, you might be getting sued.

(And if your dog and your wallet are both on a chain, you might be a redneck)*

2.  If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business,” you might be getting sued.

(And if you’ve ever financed a tattoo, you might be a redneck)

3.  If your employee attempts to tape record her performance review, you might be getting sued.

(And if you have the local taxidermist’s number on speed dial, you might be a redneck)

4.  If your employee recites the requirements of an employment law statute better than your HR Department can, you might be getting sued.

(And if you’ve been on TV more than 3 times describing the sound of a tornado, you might be a redneck)

5.  If your 70 year old employee (with 35 years of service) that you just terminated has a personnel file thinner than a potato chip, you might be getting sued.

(And if you think the French Riviera is foreign car, you might be a redneck)

6.  If your employee walks around with a bulging notebook documenting every conversation she has had with co-workers and supervisors, you might be getting sued.

(And if you’ve ever mowed your lawn and found a car, you might be a redneck)  

7.  If your employee goes on an epic Facebook rant that his supervisor is treating him “unfairly,”  you might be getting sued.

(And, finally, if your idea of a “7-course meal” is a bucket of KFC and a six-pack, you might be a redneck)

Ba dom bomp!  Thank you! Don’t forget to tip your waiters and waitresses. I will be here all week…

Of course, getting sued by an employee is no laughing matter. Watch for the above warnings signs.  If you observe any of them, make sure that you have a sound business reason (backed up by sufficient documentation) before taking any disciplinary action against the employee.  Otherwise, the joke will be on you.

*All jokes courtesy of Mr. Foxworthy

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
              @wagelaws 

 

 

 

Sue Early And Sue Often

“You got to know when to hold ’em. Know when to fold ’em.
Know when to walk away. Know when to run.”

Kenny Rogers, “The Gambler”

As certain as death and taxes, each day in this great country someone, somewhere is filing a head scratchingly stupid lawsuit.  “Sue early and sue often” seems to be the mantra in our litigious society. The latest example comes from Sin City, where a gambler is suing a casino to recover his massive gambling losses. 

The gambler’s argument?  He was too drunk to know what he was doing.  As Dr. Seuss might say, he drank in the limo on the way to the casino, he drank playing Keno*, he drank at dinner, he drank hoping to be a winner, he drank at the gaming table, he drank because he was able.

The gambler admits he was drunk for almost 3 days straight, and lost hundreds of thousands of dollars in his “blackout” state.  Now he wants his money back.  His theory?  The Las Vegas casino kept providing him “free” drinks and loans to gamble with when they knew he was blitzed.  In other words, he was the sloppy drunk overserved victim.

Personal responsibility?  That’s for losers, man!  Bad choices?  Give me a break (and a refund)!

So listen to Kenny Rogers – the man is a Grammy winning singer/songwriter, actor, roasted chicken magnate, and suspected plastic surgery aficionado after all.  Don’t gamble that your company won’t get sued.  You will, and often for ridiculous reasons.  (Remember the $2.9 Million Dollar McDonald’s lawsuit over spilled coffee?  Coffee is hot?  Who knew?)

Increase the odds of your company winning an employment lawsuit  by following sound human resources practices.  First, don’t hire losers.  Review employment applications carefully, contact employment references, and do background checks.  Second, administer clear written policies in a non-discriminatory manner. Third, document all significant personnel decisions.  Fourth, honestly communicate the reasons for termination.  And finally, don’t drink on the job.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
: @HRGeniusBar
@wagelaws

*Not sure if he played Keno, but it rhymes.