Monthly Archives: March 2010

There Are Better Ways to Enforce A Dress Code

Discrimination

Why do these kinds of cases only happen in Texas? In a head-scratching act of stupidity, the president of hatmaking company near Wichita Falls, Crowell Contract and Design, pulled a female employee’s pants down in front of her coworkers.

The Equal Employment Opportunity Commission was not amused. It sued on the female employee’s behalf, claiming that the president created a sexually hostile work environment. The company had to pay $21,500 to the employee to settle the case, as well as agreeing to provide training to all of its employees on preventing sexual harassment. The EEOC characterized the action of the president as an abuse of power.

I’m guessing that at the time of the incident, the president of the company probably thought of it as a prank, not an abuse of power. I know that I have been tempted to do the same thing when walking behind teenagers in the mall wearing baggy jeans that show their boxer shorts (I never thought I would be pleased to see tight, skinny jeans make a comeback)! But as an adult, I have always resisted following through on that temptation. That’s what responsible people do.

Although the reports of the Crowell settlement don’t explain the company president’s motivation, I’m guessing he thought his employee’s pants were too baggy. The reports do say that he had previously threatened several times to pull her pants down.

Maybe the president didn’t know that in Texas, employers are free to write dress codes and enforce them based on the company’s expectations of professionalism and community standards. If he didn’t like baggy pants, he could have prohibited his employees from wearing them. As long as your dress code doesn’t single out one gender or one race and discriminate against that group, it is not illegal.

His “prank” appears to me as a passive/aggressive way of handling a pretty simple dress code problem. If the president of the company thought his employee was inappropriately dressed, he should have verbally warned her that her clothes violated the company dress code and sent her home to change clothes. If she continued to wear the baggy pants, he should have given her a written warning, a suspension and then fired her. That is the standard progressive discipline policy that every savvy employer in this country understands and enforces.

The president unwisely resorted to a fraternity prank instead of good management. It was an expensive decision. It reminds me of an incident a few years ago when a Dallas producer on the Barney show (purple singing dragon, remember?) decided that he would discipline a female employee by spanking her! Maybe he had worked in children’s television too long. That one resulted in a sexual harassment suit also.

Come on, Texas! We can do better.

What is the Maximum Leave an Employee Can Take?

Attendence, Discrimination, Medical

Sears Roebuck & Co. recently settled with the Equal Employment Opportunity Commission a class-action lawsuit for $6.2 million, the largest monetary award for a single Americans With Disabilities Act (“ADA”) suit in EEOC history.

The accusation against Sears was that the company discriminated against the disabled because it had an inflexible policy that allowed injured employees to take off of work for one year before they were automatically terminated for exhausting all leave. The EEOC said that this apparently neutral policy did not provide injured employees with reasonable accommodations in violation of their ADA rights.

With this suit, the EEOC is signaling an end to maximum leave policies. So if an employee has a serious health condition and uses all of his Family and Medical Leave but still cannot return to work, the employer now has to determine whether it would be a reasonable accommodation to allow the employee to miss more work. This is the EEOC position even though the courts have held that regular attendance is an essential function of most jobs and that indefinite, open-ended leave requests are not reasonable.

Texas courts have long held that maximum leave policies, neutrally applied regardless of whether the employee suffered an on-the-job injury, had a heart attack or wants to extend her maternity leave, are valid in Texas. The EEOC is undercutting those holdings in an attempt to impose a different standard (or no standard at all). From the settlement with Sears, the EEOC apparently wants all employers to follow these steps when an employee has been on leave and is unable to return at the prearranged time:

  • The employer must notify the employee 45 days in advance of the date her leave expires.
  • The employer must engage in the interactive process with the absent employee to determine whether part-time work, modified duties or a move to another position  would reasonably accommodate the employee and allow him to return to work.
  • If none of the previous options work, then the employer should consider offering additional leave beyond what the policy calls for.

What this means to even a small employer (15 or more names on the payroll) is that there will be no bright-line cutoff to an employee’s leave. If the EEOC’s position prevails, employers will have to hold all jobs open indefinitely for an employee who must take time off for an injury or illness.

At this point, my only advice is to wait and see how the courts react to the EEOC’s position. The Sears suit was a pretrial settlement, so we don’t know how this unreasonable position of the EEOC will hold up in court.

In Texas, it is still the law that an employer can enforce a neutral leave of absence policy by automatically terminating an employee who has exceeded the maximum leave offered. Just be aware that that law could change at any time if courts begin to side with the EEOC.

EEOC Ordered to Pay Employer’s Attorneys’ Fees

Compensation, Discrimination

Many employers have felt victimized by the federal government’s sometimes overzealous enforcement efforts on behalf of employees against the companies they work for. For example, the current trend regarding any compensation mistake by the employer is to label it “wage theft” and prosecute the employer like a common purse snatcher. (Click here for more information on “wage theft” enforcement efforts).

Obviously, some businesses do discriminate and some purposefully fail to pay required overtime. But the company is not always the bad guy and it is nice to know that occasionally a judge will side with the company instead of the government.

This happened recently in Iowa, where a trucking company had spent $8.5 million in attorneys’ fees, expenses and costs to defend itself against allegations by the Equal Employment Opportunity Commission that the company had a pattern and practice of sexual harassment. The federal judge dismissed the EEOC’s suit against trucking company after the company filed a motion for summary judgment. The female judge also issued scalding criticism of the EEOC’s pursuit of the case.

To punish the EEOC, the judge used her discretion to award money to the prevailing party to cover attorneys’ fees, which in this case was the trucking company. She ordered the EEOC to pay $4.56 million to the company to help with some of their legal fees.

For someone who always represents employers and who constantly has to tell them that the chance of getting reimbursed for attorneys’ fees is slim to none, I found this case as a small glimmer of hope that the small business owners whom I represent could receive justice in an egregious case like this one. However, I must point out that no matter how nice the $4.5 million judgment against the EEOC seems, there are two caveats to consider: (1) the company spent $8.5 million defending itself against these scurrilous claims and will only get half of that back; and (2) the EEOC has already said it will appeal the $4.5 million attorneys’ fee award, meaning the trucking company is not through spending money on legal proceedings yet.

For most of us small business owners, the idea of spending $8.5 million in defending our companies is laughable. Most of us couldn’t spend 1/100th of that on attorneys without bankrupting ourselves.  That’s why I harp so often on preventative measures that an employer can take to avoid employee litigation. It is far better to never be sued at all than to win a very costly victory like the Iowa trucking company did.