Aiken & Aiken, LLC – Attorneys at Law

Sheila Aiken April 14th, 2008

Title VII of the Civil Rights Act of 1964 prohibits employers (with 15 or more employees) from discriminating against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment due to the individual’s race, color, religion, sex, or national origin.  However, Title VII also includes a defense to discrimination known as the “bona fide occupational qualification” defense, or “BFOQ” defense.   

Title VII allows for employers to discriminate on the basis of religion, sex, or national origin in their hiring and employment practices in instances where religion, sex, or national origin is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise …”.  Courts have determined that discrimination on the basis of religion, sex, or national origin is permissible if the discriminatory action is required due to the “essence of the business”.  Note that “race” and “color” are conspicuously absent from the allowed BFOQ defense.  Under Title VII, there cannot be any reason that would justify discrimination on the basis of race or color.

In order to show that a discriminatory action was allowable as a BFOQ, an employer must prove:

1. There is a direct relationship between the protected characteristic and the ability to perform the job duties;
2. The bona fide occupational qualification directly relates to the “essence” or to the “central mission of the employer’s business”; and
3. There is no less-restrictive, reasonable alternative available to the employer

Employers who attempt to use the BFOQ “defense” to discrimination need to be aware that courts have interpreted the statute very narrowly and will only infrequently find that a permissible BFOQ exists.  One of the seminal cases on BFOQ exceptions is International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et. al. v. Johnson Controls, Inc.  In that case, the employer established a policy excluding fertile women from working in a position that required exposure to high doses of lead, in order to protect the possible unborn fetuses from damage due to the lead exposure. 

In that case, the U.S. Supreme Court found that the BFOQ defense was not available to the employer.  The Court specifically stated that the BFOQ exception must be interpreted narrowly, and advised that “[n]o one can disregard the possibility of injury to future children; the BFOQ, however, is not so broad that it transforms this deep social concern into an essential aspect of battery-making.”

When considering whether to adopt a discriminatory business practice due to a BFOQ, employers should seek advice from legal counsel before taking any action.  Because of the restrictive language of the statute itself, and the extremely narrow interpretation of the statute by the judiciary, advice from an attorney on whether a specific situation would rise to the level of an allowable BFOQ would be invaluable in preventing liability for discrimination claims down the road. 

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Michele Aiken April 10th, 2008

Most employers are familiar with the “usual” ADA discrimination prohibitions – namely that any employer with 15 or more employees may not discriminate against an employee who: has a physical or mental impairment which limits one or more major life activities; has a history of such impairment; or is regarded as having such impairment. However, there is another, lesser known, discriminatory prohibition covered under the ADA which is becoming more prevalent – that of association discrimination.

In addition to the three prohibitions listed above, the ADA also forbids an employer from discriminating against an employee who has a relationship or association with an individual who has a physical or mental impairment which limits one or more major life activities. According to the EEOC, the purpose of this provision is to prevent employers from taking adverse employment actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.

A familial relationship is not required to support a claim of discrimination by association. The association may be with a family member or anyone else with whom the employee has an association. For example, an employer would violate this provision of the ADA if it took adverse employment action against an employee who volunteers at a homeless shelter which has a high population of HIV/AIDS individuals, if the employer’s decision was based on concerns about the disabilities of the individuals that the employee works with at the shelter.

The association provision does not require an employer to provide a reasonable accommodation to a person without a disability on the basis of that person’s association with a disabled individual. However, an employer must avoid treating an employee in a different manner than other employees based on the employee’s relationship or association with a disabled person. For example, an employer would not be required to modify its leave policy for an employee who needs time off to care for a disabled child as a “reasonable accommodation” under the ADA.

According to the EEOC, types of employer conduct that would be prohibited under the association provision include:

• Terminating or refusing to hire an individual due to his/her known association with a disabled individual
• Denying an employee promotion or advancement opportunities due to the employee’s association with a disabled individual
• Denying an employee health care coverage that is available to other employees because of the disability of someone with whom the employee has an association

In February 2008, the Seventh Circuit handed down a decision in an ADA association discrimination case – Dewitt v. Proctor. In that case, a nurse was fired by the hospital due to the excessive health care costs incurred by her husband during his treatment for prostate cancer. In its decision, the Court held that an individual may establish a case for association discrimination under the ADA by showing that:

1) The individual was qualified for the job at the time of the adverse employment action;

2) The individual was subjected to an adverse employment action;

3) The individual was known by the employer to have a relative or associate with a disability; and

4) The individual’s case falls within one of three categories: the employer believes the individual will be: costly to the employer, distracted from work, or a possible threat in spreading the disabling condition.

If the individual is successful in establishing these requirements, the burden then shifts to the employer to prove a non-discriminatory reason for the adverse employment action in question.

With the increased litigation being brought under the association provision, the EEOC is increasing its scrutiny of allegations of association discrimination made by employees. Employers would be well-served to review their own policies and procedures with counsel to ensure that they don’t run afoul of the ADA’s prohibition against association discrimination.

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Michele Aiken April 4th, 2008

Most employers live in fear of an employee making an allegation of sexual harassment in the workplace. The news is filled with reports of multi-million dollar verdicts against companies in sexual harassment claims.

There are generally 2 types of sexual harassment claims – quid pro quo and hostile environment. Quid pro quo harassment occurs when an employer / supervisor makes some type of sexual conduct a requirement of employment, to obtain a raise or promotion, or to avoid adverse employment consequences. Hostile environment harassment occurs when an employer, supervisor, or co-worker creates an offensive, hostile, or intimidating work environment for another employee through actions such as inappropriate remarks or physical contact.

If your company receives a complaint from an employee of alleged sexual harassment, you do have a defense available to you. However, in order to fully access the defense’s protection, you must have set the procedures in place prior to the claim.

A U.S. Supreme Court decision allows employers a defense against a claim of sexual harassment if it can show that:

1. the employer took reasonable care to prevent sexual harassment behavior and promptly correct such behavior; and

2. the individual claiming harassment “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer”.

The most effective method for complying with the “defense” requirements is to have an established sexual harassment policy in place. The policy should be tailored to your specific work environment, should provide for employee communication and training, and should be followed in all instances of alleged harassment.

Companies that do not implement a policy against sexual harassment in the workplace are basically “throwing away” one of the strongest defenses to a claim of sexual harassment by an employee. By adopting, distributing and adhering to an internal employment policy against harassment, employers have a ready-made defense to sexual harassment claims. Without such policies and procedures, employers leave themselves vulnerable to these claims. You should consult with your employment attorney for advice on establishing the appropriate policy and procedures to ensure that your company is protected to the fullest extent possible.

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Sheila Aiken April 2nd, 2008

These days with more and more type of records that a business creates and which are recognized by courts, businesses need an effective records retention policy as part of their overall policy and procedure strategy.  Companies need to ensure compliance with both state and federal laws that govern a company’s records.

For instance, the Sarbanes-Oxley Act of 2002 created record retention requirements that apply to all companies, both publicly traded and privately held.  Section 802 which provides that it is a crime for someone to intentionally destroy, alter, mutilate, conceal, cover up or falsify any records, documents or tangible objects that are involved in (or could be involved in) a U.S. government investigation or prosecution of any matter or in a Chapter 11 bankruptcy filing.

A records retention program can protect businesses in litigation and disputes that arise during the course of business.  These programs help ensure compliance with federal and state laws and regulations.  Additionally, evidence of a clear and consistently enforced records retention program, provided it is enacted for valid purposes, will go a long way to convince courts that the destruction was reasonable and will generally provide a “safe harbor” under current rules of civil procedure.

However, while it is important to keep clutter to a minimum, a company can get into difficulties by tossing the wrong paper or deleting an important e-mail.  It is important to have all relevant documents during a lawsuit.  Not having a document can mean the difference between winning and losing in a lawsuit.  A judge or jury may be permitted to conclude that the document contained information detrimental a business should they not be able to product it.

Any policy a company creates should cover both hard copy documents and electronic documents.  Now that electronic discovery has been recognized in law suits, companies need to ensure they review their electronic records with the same careful attention as other documents.  Electronic records include records stored in email; on employee’s voicemail, computers, PDAs, cell phones, external drives, CDs, and DVDs; and on company networks and backup systems.

A comprehensive policy should cover how long to keep a document, when and how to store the document, and how to dispose of the document, will depend on the type of document.  It should also include details on how the destruction of documents should be handled.  Things to consider in this should include how electronic records will be destroyed as well how confidential information will be destroyed.  Additionally, the policy should include a procedure that preserves all records once a company is reasonably anticipates litigation. 

It is important for the success of the policy that employees be trained and be held accountable for compliance.  Additionally, a periodic audit should be held to ensure that the appropriate records are being destroyed. 

Due to the magnitude of legal requirements, as well as the specific needs of each company, it is advisable to consult legal counsel before implementing a tailored records retention policy.  In addition, businesses should consider any industry standards that may affect the holding period of records due to unusual legal circumstances.

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Michele Aiken March 14th, 2008

The 79 million Baby Boomers in the U.S. continue to charge full-speed toward retirement age.  The oldest of the Boomers will turn 65 in 2011, and from that point on, it is likely that more workers will be leaving the workforce than will be entering it.  Companies need to face the reality that there will soon be a significant gap in the workforce, assess how it will impact their organization, and implement a company-wide succession planning project.  According to a recent report released by the Aberdeen Group, succession planning is underutilized by most small and mid-sized businesses.  Only 35% of small and mid-sized businesses have a succession plan in place.

Although succession planning is most frequently used for presidents, CEOs, or other senior management personnel, it can be a useful tool for virtually all levels of an organization, regardless of the organization’s size.  Many businesses have positions that require specialized knowledge, skills and/or abilities.  If the employee that filled such a position retired or left the company, the company needs to ensure that there is someone immediately available with the same specific skill set to take over.  This is especially crucial for small to mid-sized businesses, where there is little-to-no employee redundancy, and everyone’s job is vital to conducting ongoing business activities.

A company’s first step in succession planning should be to conduct a risk evaluation.  This can be accomplished by examining every position in the company and assessing (1) possible retirement plans of the individual working in the position, (2) importance of the position in relation to the overall functioning of the company, and (3) current status of possible replacements for the individual working in the position.

Once the risk evaluation is complete, the company should develop a strategy for minimizing the potential impact of retirements by various HR tools, including succession planning and updating recruitment and training policies.  Some potential avenues to explore include:

• Create consulting agreements with senior managers that would provide access to their knowledge and experience after retirement
• Create policies and procedures allowing for part-time return to work after retirement
• Update existing training policies and procedures to allow for accelerated training opportunities for key positions

Keep in mind that employment and employee benefits issues could arise as a result of the succession planning.  For example, re-hiring retirees can have an impact on benefits eligibility.  Consulting with your benefits attorney during the risk evaluation and strategy development can identify and correct employment and benefit issues before the employer implements policies and procedures that can create problems in these other areas.

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