Finally get that promotion? Get exclusive content, tips and tools to help you excel.
Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
English-only rule challenged; open-door policy a sham; more.
Challenge To English-Only Rule Moves Forward
Maldonado v. City of Altus, 10th Cir., No. 04-6062 (Jan. 11, 2006).
An Oklahoma city’s English-only policy may have created a hostile work environment and discriminated against Hispanic employees in violation of Title VII, according to the 10th U.S. Circuit Court of Appeals.
In response to a complaint that an employee could not understand what was being said in Spanish over the city radio, the street commissioner of the City of Altus, Okla., instructed employees not to speak Spanish at work. Three employees submitted a written objection.
The city then adopted an official English-only policy requiring employees to conduct all work-related communications in English except under circumstances where use of another language was essential.
A group of bilingual, Hispanic employees filed suit, alleging national origin discrimination claims, as well as claims under 42 U.S.C. §1983 for deprivation of equal protection and free speech rights. The district court granted summary judgment for the defendants, and the employees appealed.
The appellate court reversed on the national origin claim, finding that the employees presented sufficient evidence of ethnic taunting of Hispanic employees as a result of the English-only policy for a reasonable jury to rule in their favor. In addition, the policy itself reasonably could be construed as an expression of hostility toward Hispanics. Moreover, by prohibiting Hispanic employees from speaking Spanish even when they were on break and having private conversations, the policy was enforced more broadly than it was written.
The court also rejected the city’s business necessity defense, concluding there was no empirical evidence suggesting that communication, morale or safety problems previously had resulted from the use of languages other than English.
The record also contained sufficient evidence of intent to create a hostile work environment, the court held, noting the street commissioner’s private expression of concern that non-Hispanic employees would tease Hispanic employees in connection with the policy. Moreover, there was evidence that the mayor called the Spanish language “garbage” during a news interview.
The employees likewise presented sufficient evidence to support a jury’s finding that the city lacked a substantial work-related reason for the policy. Thus, the 10th Circuit reversed the district court’s grant of summary judgment on the Title VII claims.
As for the free speech claim, the employees made no showing that the speech precluded by the English-only rule was anything other than “mundane, quotidian conversation,” as opposed to protected speech on a matter of public concern.
By Lawrence Peikes and Meghan D. Burns, attorneys with the firm of Wiggin and Dana LLP in Stamford, Conn.
Sham Open-Door Policy Supports Punitive Damages
Arrieta-Colon v. Wal-Mart Puerto Rico Inc., 1st Cir., Nos. 04-2614 and 04-2615 (Jan. 13, 2006).
Failure to put an open-door policy into practice precludes an employer from escaping liability for harassment by supervisors and may support a punitive damages award against the employer, the 1st U.S. Circuit Court of Appeals decided.
Miguel Arrieta-Colon received a penile implant used to correct a sexual dysfunction. As a result, Arrieta-Colon had a constant semi-erection that was visible through his clothing. Soon after he returned to work at Wal-Mart, his co-workers and supervisors began harassing him about his condition.
Wal-Mart had an open-door policy, which permitted any employee with a grievance to complain to any supervisor, manager, officer or the president of the company. Under this policy, a grievance did not have to be in writing. If an oral complaint was made, there was an obligation to investigate it.
Arrieta-Colon had complained of the harassment he suffered to at least three supervisors in his immediate chain of command and to several other managers. Despite his complaints, no corrective action was ever taken. Co-workers and supervisors continued to harass him.
The continued harassment eventually took its toll—Arrieta-Colon had trouble sleeping, lost weight and experienced a loss of libido. Eventually, Arrieta-Colon resigned and filed suit alleging he had been subjected to a hostile work environment as a result of his medical condition.
Wal-Mart requested that the jury be instructed regarding its open-door policy. The trial court refused to instruct the jury that if Arrieta-Colon unreasonably failed to take advantage of the policy, it must find for Wal-Mart. The jury returned a verdict in Arrieta-Colon’s favor and awarded him compensatory damages of $76,000 and punitive damages of $160,000.
On appeal, the 1st Circuit held that there was no evidence to support giving a jury instruction on Wal-Mart’s open-door policy. The court noted that the policy existed on paper but had not been put into practice. Also, the evidence showed that Arrieta-Colon attempted to take advantage of the policy on numerous occasions.
The 1st Circuit also held that there was sufficient evidence to support an award of punitive damages against Wal-Mart. After reviewing the facts, the court held that a reasonable jury could conclude that Wal-Mart’s open-door policy was a sham and, thus, award punitive damages.
By Quentin Smith, an attorney with the firm of Gilkey & Stephenson PA, an affiliate of Worklaw Network® in Albuquerque, N.M.
FMLA Provides No Damages For Emotional Distress
Rodgers v. City of Des Moines, 8th Cir., No. 05-1810 (Jan. 25, 2006).
Damages for emotional distress are unavailable under the Family and Medical Leave Act (FMLA), the 8th U.S. Circuit Court of Appeals ruled, joining a number of other federal appeals courts.
While working for the City of Des Moines, Barbara Rodgers required periodic medical treatment and absences from work based on numerous medical conditions, including fibromyalgia and diabetes. She took much of her leave intermittently, often with last-minute notice. In 2001, for example, Rodgers was absent for all or part of 115 workdays out of 249 workdays that year.
In January 2002, Police Chief Ronald Wakeham, who was Rodgers’ supervisor, pointed out her attendance numbers and asked Rodgers to “take whatever steps are necessary to demonstrate significant and sustained improvement in attendance.” Immediately following the chief’s notice, Rodgers applied for “future” FMLA leave.
Because Rodgers’ application for leave provided insufficient information about the type and frequency of the anticipated leave, the city denied the request and asked for more information. Over the next two months, Rodgers continued to supply inadequate information about the requested leave.
Chief Wakeham informed Rodgers that in light of the vagueness of her request, the department would handle her doctors’ visits like any other appointment. He asked her to schedule appointments at a time that “will least interrupt business operations.”
In addition, the city asked for a second medical opinion to review the medical necessity of Rodgers’ requested leave. After the results of the second opinion indicated her medical condition was unpredictable in terms of flare-ups, the city approved Rodgers’ request for intermittent leave.
In 2003, due to a citywide reduction in force, the department eliminated Rodgers’ position and transferred her to a newly created job with identical pay and benefits. She sued, claiming the city unlawfully made her feel that she should not have taken the FMLA leave. Rodgers continued her employment with no loss in pay or benefits throughout the litigation.
The lower court granted the city’s motion for summary judgment. On appeal, the 8th Circuit held that Rodgers did not provide facts that would support her claim for damages under the FMLA. The law lists specific damages for which an employer may be liable, and that list includes only monetary losses actually sustained. Consequently, employees cannot collect emotional distress damages for an FMLA violation, the court decided.
By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Become a SHRM Member
SHRM’s HR Vendor Directory contains over 3,200 companies