National Clothesline

This month has been a busy one for employers and employees fighting it out in court. There were four cases resolved against employers that illustrate the danger of running a business in today’s legal climate.

In the first case, a restaurant adopted a new tip policy for its waiters. Three of the waiters complained to the employer that the policy violated state wage and hour laws, but they did not file a complaint with the government. They were fired shortly after complaining. The employer, after being sued for unlawful retaliation, contended that the failure to file a complaint with the government made the retaliation claim void. The court disagreed.

The court, in essence, found that employees who complain about unlawful practices to their employers have the same right not to be retaliated against as their colleagues who pursue more formal action. Thus, employers need to be aware that employee complaints of discrimination or other violations of employment laws, even if without merit, should not form the sole basis for a decision to discharge.

In addition, complaints such as these could be protected under the National Labor Relations Act, which allows employees to act in concert to discuss wages, hours, and working conditions.

Fox News, in the second case, agreed to pay four women $250,000 to settle a case of sexual harassment. The EEOC had brought the case on behalf of the Fox News employees based on comments made to them by the network’s president. Those comments allegedly involved obscenities, vulgarities, descriptions of women’s anatomy, and remarks unflattering to women. It was further alleged that the president did not act the same way toward men.

The Fox News settlement illustrates the problem inherent in allowing workplace language to go unpoliced. Obscenities and vulgar comments should be met with immediate action, even if there are no complaints. If the employer waits for an employee to complain, it may find itself sued for constructive discharge by an employee who quits over the comments.

This is what happened in the third case, involving an employee who alleged she was stalked, verbally harassed, and fondled by her manager. Rather than complain about the behavior, she quit and sued.

A federal appeals court ruled that her decision to quit was tantamount to being fired, and she could maintain an action for constructive discharge. Employers must therefore be vigilant to determine if employees are the victims of sexual or other harassment, even if there are no complaints.

Employers should be especially wary of managers dating subordinates, obscene workplace language, and physical contact between employees. What may appear to be consensual could in fact be actionable sexual harassment. Ignorance is not bliss.

Finally, a court ruled that a school run by a church could not fire a pregnant, unmarried teacher because her pregnancy was considered immoral by the church. The court found that the church could hold a minister to a high standard of conduct, but not a teacher involved in very little, if any, religious teaching. The court allowed her to sue for pregnancy discrimination.

This final case is timely for two reasons. First, employers tend to think that if they are not covered by the Family and Medical Leave Act, they are not obligated to provide any accommodations to pregnant employees. This is not the case. Pregnancy discrimination laws apply to small employers (usually 15 or more employees, though state and local laws can apply to smaller companies), and those laws generally require employers to treat pregnancy the same as any other short-term disability.

Further, employers should be careful about imposing their religious views on their employees. Certainly, an employer can adopt rules of conduct based on decency, whether religiously based or not, but if those rules run afoul of employment laws dealing with pregnancy, sex discrimination, marital status, disability, or other conditions that could have religious implications, they could give rise to liability.

In conclusion, if you can stay out of legal fights with your employees, you should do so. Understand that employee complaints may be protected activity, that workplace language and conduct cannot be ignored without risks, and religion cannot always be used to justify a business decision.