Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2005

Retaliation Equals Discrimination, Thanks to Coach Jackson

Thursday, March 31st, 2005

When someone speaks up about discrimination they observe, should it matter whether they themselves are being discriminated against? In many instances, the law requires victims to complain, but what happens when those who complain become victims? The U.S. Supreme Court this week made the law concerning retaliation a bit more clear, in the case of Jackson v. Birmingham Board of Education, involving a male high school basketball coach who spoke up for the young women he coached when their school treated them unfairly.

Most workers are familiar with the concept of discrimination, or at least think they “know it when they see it.” Many are surprised the ability to address unfair treatment is not as substantial as they think. In 1964, Title VII, the Civil Rights Act, made it illegal to discriminate on the basis of sex (as well as race, color, religion and national origin) across the nation. Title VII also makes clear, in section 2003e-3(a), that an employer cannot take any adverse action against an employee, or retaliate, because an employee spoke out in opposition to discriminatory practices that are unlawful under Title VII.

Roderick Jackson worked in Ensley High School in Birmingham, Alabama, as a physical education instructor and coach of the girls basketball team. When transferred to Ensley from another Birmingham school in 1999, Coach Jackson discovered that the girls team he coached was not receiving equal funding and equal access to athletic equipment and facilities. His team was forced to practice in gyms that were not regulation-sized, and whose baskets had bent rims. Coach Jackson’s team, unlike the boys team, could not access the funds earned at their games to pay for game officials, equipment and other relevant supplies.

So Coach Jackson spoke out about it, by complaining to the school administration, starting in December 2000. Instead of working to improve the conditions for the girls’ team, however, the school instead started giving Jackson negative work evaluations. At the end of the 2000-2001 school year, Jackson was removed from his coaching position, although he still teaches phys ed.

While Coach Jackson argued that his ability to effectively coach the girls team at Ensley was negatively affected by the discriminatory conditions, the crux of his complaint was that he was retaliated against for complaining about discrimination against the girls team, which, he charged, was based upon their sex. So instead of an employment discrimination claim under Title VII, he was required to bring a claim under Title IX, a law addressing sex discrimination in educational settings.

Under Title IX, schools that receive public funding are not allowed to discriminate on the basis of sex, and can face lawsuits from those whose rights are violated. Title IX has been an important weapon, since its enactment in 1975, for women’s sports teams trying to achieve parity with the men’s programs at their schools, and has also been used by girls and young women to end sexual harassment in a school setting.

Unlike Title VII, Title IX does not have an explicit provision making retaliation illegal, so the Birmingham school district claimed Jackson didn’t have a case. The federal trial court agreed with the school district, and dismissed Jackson’s case. This ruling was upheld by the next higher court, the Eleventh Circuit Court of Appeals. However, in its ruling this week, the U.S. Supreme Court disagreed. (See Jackson v. Birmingham Board of Education, March 29, 2005)

The Court, in an opinion written by Justice Sandra Day O’Connor on behalf of a 5-4 court majority, stated that because retaliation was an intentional act, it is a form of intentional discrimination based upon sex, which is what the law makes illegal. Retaliation is therefore a subset of the broad category of unlawful conduct which is considered to be discriminatory, i.e., different treatment for a particular unlawful reason, rather than a separate and distinct category of conduct which has to be spelled out in the law to be covered. As Justice O’Connor wrote, “without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.”

The Court rejected the school’s argument that Jackson was only an indirect victim of discrimination. Surely it felt pretty direct to Jackson when he was fired as the girls’ basketball coach. The Court recognized that young and vulnerable students may not always be in the best position to recognize or speak out against discriminatory conduct, yet if their rights are to be truly vindicated, teachers and coaches may be the only ones who can effectively speak out on their behalf.

Jackson’s case is not over: the legal battle to date has been over whether he can even file his lawsuit, and not whether he can win it. The case is now remanded to the trial level court for further action, and Jackson will now have a chance to demonstrate the extent to which he was discriminated against. While the case on its face only applies to school settings, it is nonetheless important in the employment setting to clarify that retaliation is but one form of intentional discrimination, especially when state laws don’t explicitly mention retaliation, unlike federal law. Any time the Supreme Court takes an expansive look at a discrimination statute, rather than limiting it strictly to what it says, it’s a good thing.

It’s definitely the week to think about basketball, and I’ve personally been thinking a lot about basketball this week, with both the men’s and women’s teams of my alma mater, Michigan State, about to play in the Final Four of the NCAA Tournament. I must recognize, however, that were it not for coaches like Coach Jackson, certainly the women’s team wouldn’t be making a Final Four appearance. If it weren’t for Title IX and coaches’ efforts to make it mean something, there might not even be a women’s Final Four — much less one comprised of such top-caliber female athletes, and coaches like Pat Summit of Tennessee, whose winning record this year surpassed the NCAA men’s record holder, Dean Smith of North Carolina. (See New York Daily News article.)

For Coach Jackson, the issue was relatively simple. “I have a son and daughter who both play sports,” Jackson said. “I want both of them to be treated equally.” Thanks to his efforts, maybe they, and many other kids along the way, will be. And when they become adults entering the workplace, perhaps they will already understand that discrimination — and that means retaliation — is against the law.

More Information:

National Women’s Law Center: Athletics
Department of Education Office of Civil Rights: Sex Discrimination

(cosigned by NELA and more than 100 civil rights organizations)

Here's a Court That Gets It

Monday, March 28th, 2005

Those whose lives are considered to be out of the mainstream, which seems to be more homogeneous by the minute these days, can find it as much of a challenge to educate the judicial system as it is to educate everyone else around them. They may not have much positive to say about the supposed qualities of judges to be learned, objective and fair. Every once in a while, however, a case comes along that demonstrates just how far we’ve traveled, when you can read the opinion and say that the court “gets it.” In Barnes v. City of Cincinnati, a case involving a transgendered cop suing her employer, the 6th Circuit Court of Appeals demonstrates an understanding of gender stereotyping and transgendered issues that is unfortunately all too uncommon in the judicial system.

Philecia Barnes used to be known as Phillip, and was a pre-operative male-to-female transsexual back in 1998 and 99, when the events of her lawsuit arose. On duty as a member of the police force in Cincinnati, Barnes was Phillip, but off duty, Barnes was living as a female, Philecia. Unbeknownst to her employer, Barnes was taking hormone treatments as part of transitioning from male to female. However, the Cincinnati vice squad would take photographs of Barnes when she was out and about living as Philecia.

In 1998, Barnes took an exam that was a necessary prerequisite to be promoted to sergeant, and placed 18th out 105 applicants. Barnes then began the process of becoming a sergeant, successfully completing 80 hours of training before being promoted to sergeant and continuing field training on a probationary basis. Barnes was subjected, however, to much more scrutiny than the other probationary sergeants. Barnes’ every move was scrutinized, as she was was not allowed in the field without supervision, required to wear a microphone and forced to travel in a car with a camera. Every single day during a three-month period, Barnes was evaluated by her superiors, who used a six-page form created just for her and no other candidates. One sergeant later testified that the purpose of the program was “to scrutinize [Barnes] and to document every mistake that [s]he made so that [s]he could be failed on probation.” (See Barnes v. City of Cincinnati at page 2.)

There seems little doubt that Barnes was treated this way because of the failure to conform to gender stereotypes. Although not fully transitioned during this time, Barnes had a French manicure, had arched eyebrows and came to work wearing makeup or lipstick on some occasions, as she was living as a woman off-duty. The lieutenant to which Barnes was assigned during the training period spoke negatively about the number of lesbians on the Cincinnati police force, and a colonel told Barnes that he needed to stop wearing makeup and to act more masculine. One of the areas in which Barnes consistently earned low scores was “command presence,” which was such a subjective factor that no one on the force could agree upon exactly what it meant, whether it was “project[ing] a certain image of confidence” or having the respect of his subordinates. As Barnes’ expert later testified, the subjectivity of the factor allowed it to be used to stereotype employees. (See Barnes v. City of Cincinnati at page 2.)

The intense scrutiny got to Barnes, who suffered a great deal of stress and had to be evaluated by a department psychologist. His scores in the probationary program continued to be mediocre. Ultimately, Barnes was the first sergeant to ever fail probation and to be demoted back to police officer in seven years, although another probationary officer had lower scores, but was not demoted. Barnes then sued the City of Cincinnati for sex discrimination, based upon the demotion. (See Barnes v. City of Cincinnati at page 3.)

In February 2003, Barnes was awarded $150,000 in compensatory damages (damages for pain and suffering), $140,000 in front pay and $30,511 in back pay, along with attorneys fees to compensate the lawyers who brought this relatively novel case. (See BNA’s Jury Verdict for Police Sergeant Trainee Demoted During Gender Transformation.) The City appealed to the Sixth Circuit Court of Appeals, claiming that Barnes’ case did not constitute sex discrimination, and that the jury’s award should have been overturned.

However, the 6th Circuit disagreed, holding that Barnes “was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes.” Their ruling was based on a Supreme Court ruling from 1989, Price Waterhouse v. Hopkins, which held that a discrimination claim could be based upon sexual stereotypes. This case is increasingly being used on behalf of transgendered plaintiffs who are successfully using existing sex discrimination law to cover discrimination on the basis of gender identity, which in most states, is not currently protected under law. (See our site’s page on Gender Identity Discrimination.)

We are also proud to report that the 6th Circuit affirmed the attorneys’ fee award to Barnes’ attorneys, Alphonse A. Gerhardstein and Jennifer L. Branch. Barnes’ attorneys received what is known as a “multiplier” or fee enhancement of 1.75 times the amount of the fees that they requested, because of the “novelty and difficulty” of the case and because of the “immense skill requisite to conducting this case properly.” (See Barnes v. City of Cincinnati at page 3.) This award was based in part on the affidavits of two Cincinnati attorneys, one of whom happens to be the co-founder of Workplace Fairness, Paul H. Tobias, who stated that few lawyers locally or nationally would take such a case.

Interestingly, the decision was written by Federal District Judge David W. McKeague, currently a judge in the Western District of Michigan, but who has been nominated to join the court for whom he wrote this opinion. Given that the law in this area is still developing, this was a courageous opinion for McKeague to author, as it is unlikely to please some of the conservatives angling for his nomination. While the opinion is legally sound and consistent with previous precedent in the 6th Circuit, it nonetheless may invite claims that McKeague is too liberal to be appointed, or too much of an “activist judge.”

McKeague’s opinion isn’t perfect: he refers to Barnes as “he” throughout the opinion. The Associated Press Stylebook recommends that those writing about transgender people

Use the pronoun preferred by the individuals who have acquired the physical characteristics (by hormone therapy, body modification, or surgery) of the opposite sex and present themselves in a way that does not correspond with their sex at birth. If that preference is not expressed, use the pronoun consistent with the way the individuals live publicly.

However, given the common-sense sensitivity of the rest of the opinion, the Court may be given the benefit of the doubt, as there may be some confusion about how to refer to events occuring while Barnes was in transition and living publicly as a member of both genders. According to Barnes, the transition was a 11-year process, culminating in surgery and a name change in 2001. (See Associated Press article.)

Currently, 79 million live in a place that bans discrimination against transgender people. Ten years ago, only 9.7 million Americans lived in a jurisdiction that banned such discrimination. (See NGLTF Glass Nearly Half Full Press Advisory.) However, in those states without explicit discrimination bans (all but Minnesota, Rhode Island, California, New Mexico, and Illinois), transgendered employees who suffer discrimination based upon gender stereotypes must look to the courts for relief, which happens much more slowly and is much more costly to achieve.

The Barnes opinion is an important precedent, as it recognizes the bias and stereotyping that can run rampant in such a conservative occupation, and the intense scrutiny to which anyone who doesn’t conform can be subjected. It’s not yet clear whether McKeague’s opinion will affect the outcome of his nomination, as there are certainly a number of other factors contributing to his fitness as a nominee. However, it is certainly refreshing that Barnes’ case wasn’t sacrificed at the altar of judicial politics: that Judge McKeague’s desire to become a member of the Sixth Circuit didn’t outweigh his adherence to the law and existing circuit precedent.

More Information:

Workplace Fairness:
Your Rights: Gender Identity Discrimination
(recently updated to reflect this case and other legal developments)

Transgender Law and Policy Institute:
Litigation: Case Law
Non-Discrimination Laws that include gender identity and expression

National Center for Lesbian Rights:
Federal Gender Non-Conformity Cases
State Cases

Transgender at Work:
Workplace Guidelines for Transgendered Employees

Gone Today, and Yesterday Never Was

Thursday, March 24th, 2005

We all know of so many ways that employers can stack the deck against employees, but now employers have a new tool in their arsenal, courtesy of the National Labor Relations Board (NLRB). Now, unless an employee is a member of a union, he or she must face an employer alone, rather than being allowed to have a co-worker present as a witness during a meeting with the employer which could lead to disciplinary action. Given that it is proving increasingly difficult to make any dent in the number of American workers, 106 million, who are not members of a union, this decision makes it even more likely that employers will exercise their ability to terminate employees at will.

For three decades, union members have had what are known as Weingarten rights, based upon a 1975 U.S. Supreme Court case, NLRB v. Weingarten, Inc., which held that union employees have the right to have a union representative at any “investigatory interview that the employee reasonably believed would result in disciplinary action.” These rights can be loosely compared to Miranda rights for criminal suspects: if you think that what you say might get you in trouble, you have the right to have someone else present. Weingarten rights are just some of the protections that union members have: more importantly, union members generally can only be terminated for “just cause,” according to collective bargaining agreements which prevent unfair terminations without any process or remedy. (See Shortchanged: Legal Protections.)

A non-union employee finds their position much more precarious, however: most do not have just cause protections, and instead are subject to the “employment at will” doctrine. This doctrine presumes that an employee has no right to continued employment and may be terminated at any time by an employer, whether or not there is just cause for the termination. (See Shortchanged: Legal Protections.) Under most circumstances, it is only if an employer violates specific laws, such as those prohibiting discrimination or retaliation, that an employee challenge an unfair termination.

In the year 2000, however, the National Labor Relations Board, the federal agency that deals with the law relating to unionized employees, held that even non-union employees had Weingarten rights. (See Epilepsy Foundation of Northeast Ohio.)You might ask how a non-unionized employee could have any rights under federal labor law, but the NLRB reasoned that even employees who are not yet union members have the right to act collectively to provide “mutual aid and protection” to one another in opposing an employer’s unfair practices. A non-union employee could, of course, still be terminated unfairly, but at least he or she might have a supportive witness who was familiar with the employer’s efforts to impose discipline. And in the best-case scenario, the employer would be less tempted to say or do something that could haunt it later.

Four years later, in a political flip-flop occasioned by a 3-2 Republican majority, the NLRB reversed itself to rule that no, non-union members did not have Weingarten rights after all. In IBM Corp., the Board said that there were new policy considerations that made it no longer feasible for employers to have an extra employee present during investigatory interviews. Think 9/11, Patriot Act, and any other similar security-related justification for denying individual rights that cropped up thereafter: “Because of the events of September 11, 2001 and their aftermath, we must now take into account the presence of both real and threatened terrorist attacks. ” Now that employers are increasingly forced to conduct more employee investigations — increasing the likelihood that some would conclude unfairly — the Board removed one of the few remaining weapons that employees have in that situation: the presence and advocacy of a third-party witness.

Well, it was great while it lasted, right? Wrong. Just ask Ken Stanhope of Wasilla, Alaska. He dared to take on the almighty Wal-Mart, suggesting in 2001 to a fellow employee that perhaps it was time to have a union. However, he made the mistake of describing the store’s managers in less than flattering (and probably obscene) terms. His co-worker, Cindy Adams, reported his comments to store management, who decided the next day to have a little talk with Ken. Ken knew his rights, and insisted that an independent witness be able to join him for the meeting. Wal-Mart refused, and sent him home for the day. The next day, Wal-Mart again attempted to meet with Stanhope, but he refused to meet with them unless they permitted a witness, which Wal-Mart would not do. Ken Stanhope was eventually terminated for creating a hostile environment and using foul language, without Wal-Mart ever hearing his side of the story. It was clear, however, that his refusal to participate in an interview without an witness present contributed to the decision to fire him. (See Wal-Mart Stores, Inc.)

Stanhope sued, thinking that it was against the law for Wal-Mart to fire him for exercising his Weingarten rights. In the first round, an administrative law judge ruled in his favor in 2002, stating that Wal-Mart had violated Stanhope’s rights. However, the NLRB ruled in December 2004 that not just employees after the Board’s 2004 IBM ruling were out of luck, but anyone who relied on those rights even during the period that they were lawfully in effect might be out of luck too.

Parsing the issue more finely than a Ginzu knife, the Board ruled that after the IBM decision, employees could be fired for refusing to proceed with an interview without a witness, even though they couldn’t be fired for asking to have a witness. Basically, after IBM, you can ask, but you shall not receive. So what’s the point in asking, it’s fair to question, and you’re right: there is no point. So Stanhope, unable to divine the future, thought that if his right meant anything, it meant that a meeting couldn’t proceed without his witness. But he was wrong: he was supposed to go: “oh, okay, nevermind then,” when Wal-Mart said no.

Here at Workplace Fairness, we’re well aware that the legal information that we share with you could change at any time (see disclaimer). But non-union employees should also be aware that without the protection of a union, what rights they think they have might end up being illusory. It’s not just “here today, gone tomorrow,” as we call our Short-Changed section on the lack of legal protections for non-unionized workers: it may soon be “gone today, and yesterday it never existed.” And there won’t be much that non-union workers can do about it, until the next election, anyway.

More Information:

American Rights at Work: Vast Majority of American Workers Are Without Real Protection by the NLRB

Slack or Heart Attack: Which Is It, Corporate America?

Tuesday, March 22nd, 2005

The headlines couldn’t help but attract my attention as an interesting juxtaposition of workplace trends on the same day: Surveys Find Workers Only Average Three Productive Days a Week, and Survey: Third of Americans are overworked. Then couple that with a little March Madness and computer solitaire, which according to some, brings workplaces to a grinding halt, and an article that says heart attacks are increasingly being caused by too much work, and who knows what to think?

Productivity may not seem like that big of an issue, but it plays a key role in our economy, job markets, unemployment statistics, and the quality of our lives. Productivity is supposed to be a good thing: productive workers make more money for their employers, who in turn are supposed to reward their employees with higher wages. But it hasn’t been working out that way lately. According to the Economic Policy Institute, over the last three years, productivity has increased by a whopping 12%, while average family income has declined by 3%. (See Economic Snapshot for Sept. 8, 2004.) Workers are pressured to be more and more productive, just to keep their jobs, not because they’re sharing in the wealth generated from their productivity.

For a third of those surveyed, the pressure is too much. In a recently released Families & Work Institute study, Overwork in America: When the Way We Work Becomes Too Much, one out of three workers report being chronically overworked. (See Associated Press story.) Unsurprisingly, employees at companies that had gone through layoffs were more likely to be overworked — 42% compared to the 27% of those at companies where payrolls remained steady. More than a third of workers said they are not taking their full allotment of vacation time.

And even more frightening, overwork doesn’t just affect stress levels and vacation usage. Scientists believe it is becoming a matter of life and death. Studies from around the world all are starting to point in the same direction, according to the latest research in the field: “The longer hours, faster pace and insecurity typical of many new jobs is taking a toll on workers’ hearts.”

U.S. and Japanese workers who put in more than 50 hours a week had markedly higher rates of hypertension, a precursor to heart disease. In Belgium, stressful jobs — defined as highly demanding with little decision-making authority — appeared to elevate the blood pressure of workers even as they slept. China’s embrace of rapid economic change has been accompanied by surges in cardiovascular disease that have overwhelmed urban hospitals. And in one small Norwegian town two years ago, the mere rumor of a plant closure was enough to raise overall blood pressure for months.

(See Los Angeles Times article.)

Yet no matter how much time workers must spend at work, or how hard they are required to work, some say that much more productivity is possible. According to those responding to a Microsoft Office survey, workers say that as much as a third of their workweek on average is unproductive, due to “unclear objectives, lack of team communication and ineffective meetings.” See Press Release of March 15. Microsoft’s survey was a self-selecting one, so possibly only the folks with extra time on their hands (waiting for a meeting to start, perhaps?) are filling out the surveys, while the chronically overworked don’t have time to waste responding to a survey. However, when findings like this are widely released, it lends credence to the idea that workers can always be pushed to work even harder than they are working already.

And then there are the offices that might as well shut down between mid-March and early April’s NCAA Championship, when March Madness becomes more virulent than any of the latest strains of avian flu. According to one survey, over 77% of online respondents say they will participate in an office pool, and 72% plan to watch, listen or check stats of games online. More so, a surprising 43% claim they will be “less productive” on the job due to the tournament. (See Press Release of March 15.) Those who know me know I’m the last one to take issue with office pools, having participated in a few myself (and winning a couple!) But isn’t it a little ridiculous that while some workers constantly live in fear of their jobs and courting heart attacks, others can spend three weeks in the early spring poring over polls and swooning over Cinderellas? And just so you know, “The NCAA opposes all sports wagering. This bracket should not be used for sweepstakes, contests, office pools, or other gambling activities.” Yeah…right.

Perhaps the best solution is to cut workers a little slack–let them take their pleasures when they can. Playing solitaire on company time, even. In North Carolina, one legislator (who apparently, unlike his constituents, isn’t glued to Duke, North Carolina, and NC State games right now) wants to make sure that hard-earned tax dollars aren’t wasted by state employees playing solitaire during the work day. State Senator Austin Allran introduced legislation to make sure of it: the bill would force the free game to be deleted from the operating system of all state computers. (See Christian Science Monitor article.) Now that’s a solution in search of a problem, if I ever heard one. Besides, it’s clear that Sen. Allran isn’t attacking the real productivity menace in North Carolina right now, but that wouldn’t score him many votes now, would it?

Today, it’s solitaire, but who knows what is next: this is part of a larger battle over the heart and soul of the workplace. As one commentator puts it: “What employers today have to decide is whether permitting employees at certain prescribed times to gain some amount of psychic enjoyment by playing games will make up for some of the lost identity and pride in work.” In fact, allowing solitaire might “actually help productivity by giving workers a low-stress outlet in otherwise frantic days.” And if a heart attack or two is prevented along the way, then maybe it’s not so bad after all.

Genetic Discrimination: Why Is Nothing Happening in the House?

Thursday, March 17th, 2005

If you observe the U.S. Senate at all these days, you know it’s a very fractured and partisan institution, with hardly anyone agreeing on anything, much less bills that benefit workers. So it may surprise you to learn that the Senate recently passed a civil rights bill with a 98-0 vote. The Genetic Information Nondiscrimination Act, as the Senate and even the President have recognized, is a legislative no-brainer: people need protection against use of their genetic information for purposes of discriminating against them. So why won’t the House of Representatives pass this bill?

What if you could take a test which would identify whether you were genetically predisposed towards such genetically-linked diseases as cancer and diabetes? Before you take the test, however, you’re told that the information disclosed in the test results might make it impossible for you to get insurance in the future, and could affect whether an employer will hire you, given the potential future impact on company health insurance rates. Many would choose not to take the test, despite the obvious medical benefits from doing so, given the serious consequences that could result from the disclosure of the information.

That is why the Genetic Information Nondiscrimination Act (S. 306/H.R. 1227) is needed. The bill would bar health insurance companies from using genetic information to deny coverage or to set premiums, and would prohibit employers from using such information to hire or fire workers. Neither insurers nor employers could ask for genetic information or require people to take genetic tests. This protection would help ensure that workers who take steps to learn more about their genetic composition will not be penalized for doing so. As a recent editorial in American Medical News, a publication for physicians, points out, “How useful can a test be if many of the patients who would benefit from it are too afraid to take it?” (See AMNews Editorial.)

In case anyone questions whether this fear is genuine, the Coalition for Genetic Fairness, an alliance of civil rights, health care, and patient groups, released last summer Faces of Genetic Discrimination, which tells the story of those who have already encountered genetic discrimination in insurance and employment. Typical of the stories told is the story of Kim, a social worker with a human services agency.

Kim…was fired because of her employer’s fears about her family history of Huntington’s disease. During a staff workshop on caring for people with chronic illnesses, Kim mentioned that she had been the primary caretaker for her mother, who died of Huntington’s disease. Because of her family history, Kim had a 50 percent chance of developing the disease herself. One week later, despite outstanding performance reviews, Kim was fired from her job.

As more and more scientific advances are reported, the number of available tests to detect genetic dispositions toward particular diseases is certain to increase. The value of those tests in prompting lifestyle changes and/or initiating preventative medicine cannot be emphasized enough. As one commentator points out,

Knowing more about one’s risk is good because it offers the opportunity to counterbalance one’s genetic risk with lifestyle and dietary changes, which can offset genetic risk. A widely quoted axiom states that, for most diseases, genetics accounts for 1/3 of the overall risk, with dietary, lifestyle, and environmental factors accounting for the remaining 2/3 of the risk.

(See MyDNA.com) However, if the people choosing to take the test know that as a result, they could become unemployable and uninsurable, then it is truly a case of “ignorance is bliss.”

In 2003, when the Senate passed this bill 95-0, the House refused to act. Given the unanimity of the Senate, and the President’s support (see LA Times editorial), it’s inexplicable why the House refuses to act, or even allow the bill to be debated. Who could oppose such a necessary and straightforward bill? Say it in a “Church Lady” voice: Could it be Satan? (I mean big corporations and insurance companies?)

This is the kind of issue that will hopefully never affect the vast majority of people negatively. However, it’s easy to see how it can wreak financial devastation in a certain number of people. And we shouldn’t underestimate its reach. As Dr. Francis Collins, head of the National Human Genome Research Institute, has characterized the bill, it’s “a bill for people with DNA,” which of course, is a bill for all of us.

Take Action Now: Support a Vote on the Genetic Information Nondiscrimination Act

More Information:

National Partnership for Women and Families: Genetic Discrimination Page
The Arc: Genetic Issues in Mental Retardation
National Human Genome Research Institute: Genetic Discrimination Fact Sheet
Nolo Press article: Of Genes and Pink Slips: Genetic Testing Goes to Work

News Articles:

Reuters: Senate Passes Ban on Genetic Discrimination
American Medical News: Senate bill aims to ease fear of genetic testing
KSL-TV5: Genetic Research Advances Create Ethical Dilemma

For Once, An ADA Case That Inspires Instead of Depresses

Tuesday, March 15th, 2005

Following employment trends, and especially court cases, can be mighty depressing work. More often than not, the limitations of the law to help ordinary citizens are all too apparent, especially when coupled with an increasingly conservative judiciary that favors employers at seemingly every turn. And if you follow developments under the Americans with Disabilities Act (ADA), you know that the news is even more depressing when compared to other employment developments. Once in a while, however, a case comes along that, to employ a perhaps trite cliche, makes your heart sing. Emory v. AstraZeneca, recently decided by the 3rd Circuit Court of Appeals, is one of those cases that should remind everyone who fights for the rights of employees, as a worker or an advocate, why they do what they do.

Alvin Emory, known as Rob, was a janitor for the drug manufacturer AstraZeneca at its Newark, Delaware plant for over 27 years. He is the only janitor at his assigned plant to have originally started work as a janitor, and to still be in that position over 25 years later. Is his failure to advance because Rob was without ambition, or lazy? Certainly not, as his story will attest. Rob was born with cerebral palsy. He has permanent partial paralysis on his right side, and he describes his right hand, arm and leg as “deformed.” This means there are certain things he can’t do, as he:

cannot tie his shoes or a tie, roll his sleeves, close buttons, or put on a belt. In addition, among other tasks, he is unable to cut his fingernails or toenails, screw the top on a toothpaste tube, cut his own meat, open a jar, pull heavy dishes and pans in or out of the oven, change diapers, carry his children up the stairs, hold a pen or pencil in his right hand, or perform certain basic household chores and repairs.

Rob also has mental limitations that stem from his cerebral palsy. He was placed in special education classes at an early age, and although he received a GED through his special education program, as a high school sophomore, he tested at a 2nd grade comprehension level. Testing in 2003 revealed that in reading, arithmetic and spelling, he tested at or below 99 out of 100 adults in his age group.

It’s clear, however, that Rob is not one to focus on what he can’t do, because what he does do with his life is more than most able-bodied citizens will ever be able to claim. He is a father and a volunteer firefighter since his teenage years. He joined the Shriners, and when he couldn’t march in parade formation with the others, he created a character incorporating his impairments known as “Stumbles the Clown” who performs with the Shriners. He volunteers for a local organization that mediates disputes between community members. And in his “spare time,” he runs a cleaning service with a partner that has two commercial contracts.

Employing that same drive and zeal to assist others in his work life, he sought promotions from his janitorial job at AstraZeneca. On multiple occasions, he trained for more advanced positions, but ultimately withdrew after it was clear that he would be physically unable to handle the increased demands of those positions. Then, when another employee was promoted in 1999, Rob assumed the position of Second Shift Supervisor. He held that position for over two years, during which time he was ridiculed for math and spelling errors and called “Rain Man,” after the Dustin Hoffman character from the movie of the same title. He asked to buy a calculator with his own money to correct his math errors, but was told no, “because everyone should know basic subtraction and adding.” He asked for testing at a learning center to determine what accommodations he needed to perform the job, and was again denied. Then, in 2001, when the Maintenance Department was reorganized, Rob was passed over for the permanent supervisor’s position.

When Rob filed a complaint with the EEOC and his local state antidiscrimination agency, the Delaware Department of Labor, and then filed a lawsuit in federal district court, his employer’s response was that Rob was not disabled enough to qualify for the protections of the Americans with Disabilities Act. They said while he had some limitations, those limitations were not substantially limiting enough for him to be entitled to legal protection. Incredibly, the district court agreed, holding that “while he may perform some of his daily activities in an unconventional manner as a result of his impairments, he is not substantially limited in his ability to perform those activities.” This meant Rob’s discrimination case against AstraZeneca was dismissed on summary judgment.

Luckily, Rob appealed this ruling to the 3rd Circuit Court of Appeals (represented by Barbara Stratton of Wilmington, Delaware, with the help of Workplace Fairness’ Chet Levitt Fund.) This court realized the ludicrousness of holding that Rob was not disabled, which essentially penalized him for all of his accomplishments in overcoming the limitations of his disability. The Court said,

So, while the District Court stressed that Emory could “operate a cleaning business, perform as a clown, counsel families as a mediator, and assist his community as a firefighter,” it ignored evidence that Emory cannot tie his shoes or necktie, open a jar, cut his nails, perform various household chores and repairs, remove heavy dishes from the oven, change a diaper, carry his children up the stairs, or cut his own meat with a knife and fork. These latter activities, which are but a few examples demonstrative of how very manually impaired Emory is, are “of central importance to people’s daily lives,” and Emory is either completely without ability or severely restricted in his ability to perform them.

Decision of March 11 at 17. The rule that the 3rd Circuit leaves us with is “What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA.”

Rob’s victory at the appellate level distinguishes him from most other individuals who bring disability discrimination cases. According to the most recently compiled statistics, employers win all but 2% of disability discrimination cases against them in federal court. (See ABA Commission on Mental and Physical Disability Report from June 2004.) In the year 2003, the last year for which statistics are available, no employees in the federal courts comprising the 3rd Circuit (Pennsylvania, Delaware, and New Jersey), won their ADA cases.

Yet again, Rob appears to have persevered to overcome substantial odds. This time, it wasn’t just his physical or mental limitations, but the limitations of the Americans with Disabilities Act when it comes to helping the very people it was written to protect. Rob is very clearly an extraordinary individual, but it’s too bad that the number of workers who prevail in ADA cases is also limited to such an extraordinary few.

More Information:

Workplace Fairness
disability discrimination page
Short-Changed discrimination page
Chet Levitt Fund
Litigation Funds

Associated Press article:
Federal appeals court grants AstraZeneca custodian a trial

Is Corporate America Finally Starting to Get It? Or Will They Miss the Point?

Friday, March 11th, 2005

There were a lot of people stunned by this week’s announcement by Boeing that its CEO, Harry Stonecipher, was being given the boot in response to the disclosure of his affair with a fellow Boeing employee. Those used to the usual paradigm, where the less powerful subordinate (generally a woman) is considered more expendable, may be shocked that Boeing would sacrifice the CEO specifically brought in to turn the company around and overcome its recent public missteps.

Does this move have significance beyond Boeing’s effort to clean up its act? Will other companies realize that it may be necessary to take a hard line against workplace relationships where they raise the appearance of impropriety? Will some companies take it too far by seeking to prevent all workplace relationships, even those that are consensual? You can bet that many corporate executives and HR professionals will be asking these questions in the days to come, as they assess their own potential vulnerability.

For those who haven’t yet heard, early this week Boeing announced that Stonecipher, the company’s 68-year old married CEO, was asked to resign after his affair with a 48-year-old company vice president came to light. See Boeing’s Press Release of March 7, 2005. The termination happened with lightning speed: the affair only began in January, during a company retreat (see Business Week article), and Stonecipher’s ouster came two weeks after an anonymous employee sent a “packet of evidence” of the affair, including sexually explicit e-mails, to company chairman Lewis Platt (see Seattle Post-Intelligencer article.)

Let the corporate handwringing begin. Was Stonecipher let go because he was specifically brought in to boost ethical standards at Boeing? Boeing’s Code of Conduct prevents actions that could embarrass the company, as certainly this has done. (See Kansas City Star article.) There is not, as of yet anyway, any claim that the relationship was anything but consensual, but Boeing may be more sensitive about the subject than most: its former CEO had not only been involved with Boeing employees himself, but the company has been recently hit with a class action sex discrimination suit. (See Seattle Times article.)

It is admirable that Boeing is attempting to hold its CEO accountable to higher ethical standards, and that the CEO was let go before the subordinate. (Her days may be numbered, however: see Associated Press article.) If Stonecipher’s ouster forces other companies to take a hard look at the activities of their corporate executives, especially when it comes to relationships with subordinates, then as the newly-freed-from-prison Martha Stewart might say, “it’s a good thing.”

However, Stonecipher’s ouster has also inspired some “crazy talk.” This situation should not be license to clamp down on each and every workplace relationship. It is a fact of modern life that one of the prime places to meet people with whom one shares common interests and other bonds leading to relationships is in the workplace, especially when many people are working too many hours to meet anyone elsewhere. While companies may have anti-nepotism rules that restrict dating (see Washington Post article), restricting relationships where employees are not in the same chain of command is simply overreacting.

Some suggest that the situation was more grave because Stonecipher was married. However, as Ellen Bravo of 9 to 5 points out: “If CEOs were knocked out for extramarital affairs, we’d have a major employment opportunity in the United States. There would be a lot of openings.” (See Los Angeles Times article.) Much of what transpired should really be between Mr. and Mrs. Stonecipher (who, being separated from her husband, might not care about the affair as much as the rest of America does right now.) (See Seattle Times column.)

Ultimately, while it is important that all companies take a look at what is going on between corporate executives and subordinates to ensure that relationships are truly consensual. Moreover, when push comes to shove, the decision to terminate an employee should not be based on who is more valuable or nets the company the most money. But it would be truly unfortunate if companies miss the larger moral issues in their zeal to clamp down on all workplace relationships or institute a new code of workplace morality that invades employees’ private lives.

More Information about Sexual Harassment

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