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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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Also: Facts needed to support FMLA leave; hate speech demonstrates employment bias
[Wyninger v. New Venture Gear Inc., 7th Cir., No. 03-1632, March 19, 2004.;
Cooper-Schut v. Visteon Automotive Systems, 7th Cir., No. 03-2205, March 17, 2004.]
In two recent cases, the 7th U.S. Circuit Court of Appeals concluded that the employers involved acted promptly and reasonably on the employees’ “hostile work environment” complaints and that such action absolved them from liability.
An employer violates Title VII of the Civil Rights Act of 1964 if it engages in unlawful discrimination by maintaining a hostile work environment. To prove a hostile environment claim involving co-workers, an employee must show that she was subject to unwelcome harassment based on a protected characteristic and that the harassment was severe or pervasive enough to create a hostile or abusive working environment. In addition, the employee must show that the employer knew or should have known about the environment and failed to act promptly to prevent or end the harassment.
The first case involved Joella Wyninger, a probationary supervisory employee at New Venture Gear (NVG), a manufacturer of manual transmissions and automobile driveline components. During her initial 90 days of employment, Wyninger failed to meet certain performance expectations. During the same period, she complained to the company about other supervisors’ vulgar language, an anonymous phone call that she viewed as “obscene” and an incident in which co-workers discussed oral sex with her.
NVG gave Wyninger time off with pay while it investigated the incidents. The company determined that the vulgar supervisors did not harass Wyninger because of her gender, but were “crude individuals” who did not interact any differently with Wyninger than they did with male co-workers and subordinates. In connection with the anonymous obscene phone call, the company placed a monitoring device on Wyninger’s phone.
Unable to substantiate Wyninger’s account of the alleged discussion about oral sex, the company took no further action on that claim.
At the end of the probationary period, NVG, citing Wyninger’s performance problems, did not continue her employment. Wyninger sued NVG, claiming multiple violations of Title VII, including a hostile work environment claim. The district court’s dismissal of the case was upheld on appeal, based primarily on the company’s prompt response to Wyninger’s claims.
Tanya Cooper-Schut, a black woman who had been employed as a supervisor with Visteon Automotive Systems, brought the second case. In her supervisory role, Cooper-Schut had trouble with some of her subordinates, who treated her with “hostility” and “intimidated” her. At one point, Cooper-Schut found a derogatory caricature, which included a racial slur, taped to a refrigerator in her work area. Cooper-Schut reported this incident, along with the other hostilities, to the company’s human resource manager, who ordered an investigation.
Before the investigation was complete, Cooper-Schut resigned from her position and filed claims under Title VII. The 7th Circuit upheld the trial court’s dismissal of the claims, finding that although the incidents complained of may have been “severe or pervasive,” there was no basis for employer liability. Visteon had responded promptly and reasonably to issues that may have violated Title VII, and many of the issues Cooper-Schut had raised were simply “friction” with her co-workers as opposed to race or sex discrimination.
By Maria Greco Danaher, an attorney with the law firm of Dickie, McCamey & Chilcote in Pittsburgh.
Unsupported Demand for FMLA Leave
Does Not Amount to Notice
[Aubuchon v. Knauf Fiberglass, GMBH, 7th Cir., No. 03-1382, March 8, 2004.]
Employees cannot simply demand leave under the Family and Medical Leave Act (FMLA)—they must provide employers with a minimum amount of information showing they are entitled to such leave, held the 7th U.S. Circuit Court of Appeals.
The FMLA entitles an employee to 12 weeks of unpaid leave during a 12-month period for reasons including caring for a family member’s “serious health condition.” Normally, 30 days’ notice is required, but if the need for leave is unforeseeable, or is foreseeable in less than 30 days, the employee must give the employer notice as soon as practicable. If the employee fails to give notice, the employer can deny the leave, regardless of whether the medical reason for the leave is genuine.
Steve Aubuchon, an employee of Knauf Fiberglass, notified his employer that he wanted FMLA leave to stay home with his pregnant wife, who was due to give birth shortly. Under the federal regulations, a “serious health condition” can include a period of incapacity due to pregnancy. But Aubuchon did not cite his wife’s incapacity, complication or any other serious health condition. Because pregnancy itself generally is not a condition for which a spouse can take FMLA leave, Knauf denied the request.
Nevertheless, Aubuchon failed to report to work. His employment was terminated due to his unexcused absence, according to company policy.
Aubuchon filed a grievance, and Knauf agreed to reinstate him without back pay. Later, the employer discovered that Aubuchon had falsified his employment application by failing to disclose that his former employer had discharged him for excessive absenteeism. Knauf again terminated Aubuchon’s employment.
Aubuchon filed a lawsuit, claiming that his initial termination was a violation of the FMLA and that his final discharge was in retaliation for exercising his FMLA rights. The lower court’s dismissal of both claims was upheld on appeal.
In ruling for the employer, the 7th Circuit relied on cases that state that unless an employer already knows that the employee has an FMLA-authorized reason for leave, the employee must communicate the reason to the employer. To hold otherwise would “place a substantial and largely wasted investigative burden on employers,” the court said.
By Maria Greco Danaher, an attorney with the law firm of Dickie, McCamey & Chilcote in Pittsburgh..
Decision-maker’s Hate Speech Was
Direct Evidence of Discrimination
[DiCarlo v. Potter, 6th Cir., No. 02-4010, Feb. 20, 2004.]
Reversing the trial court’s decision in favor of the employer, the 6th U.S. Circuit Court of Appeals recently decided that a supervisor’s derogatory comments regarding an employee’s age and national origin were direct evidence of a discriminatory motive and that the short time period between the hate speech and the employee’s termination was enough proof of illegal discrimination to send this case to trial.
Henry DiCarlo was a part-time mail processor with the U.S. Postal Service. He began employment with the Postal Service in January 2000. On the recommendation of his supervisor, he was terminated for unsatisfactory performance near the end of his 90-day probationary period. DiCarlo claimed that during his employment, his supervisor made negative age comments to him, such as he was no “spring chicken,” and also slurred his Italian-American heritage.
The trial court dismissed all of the employee’s claims on summary judgment. However, the appeals court determined that the supervisor’s comments were direct evidence of discrimination on the basis of age and national origin, because a person with decision-making authority made them.
Furthermore, the court decided that the close proximity of a few weeks between the statements and the termination was evidence that the supervisor’s discriminatory biases influenced the employee’s termination.
In addition, DiCarlo claimed that he was unlawfully retaliated against after he complained about the discriminatory remarks. The employee’s termination came only 21 days after he filed a discrimination complaint, which according to the court created an inference of a retaliatory motive by the supervisor. The appeals court also reversed the trial court’s dismissal of the employee’s retaliation claim, thereby allowing it to continue to trial as well.
By Angela H. France, an attorney with the law firm of Albo & Oblon LLP in Arlington, Va.
These decisions provide a road map for employers to avoid liability in co-worker hostile work environment claims: Once on notice of alleged harassment, the employer should respond with a full and prompt investigation, making reasonable efforts to stop the harassment and to prevent further occurrences. Regardless of whether the hostile environment is based on a protected category, full and objective documentation is vital. Supervisor training in investigatory techniques is critical.
This ruling does not negate the principle that if an employer has some reason to know of a potential FMLA-authorized basis for leave, it is the employer’s duty to follow up with the employee and request additional information. In Byrne v. Avon Products, this same court excused an employee from providing formal notice because the employee’s “dramatic change in behavior” should have indicated to the employer the presence of an FMLA-authorized condition. Each request will turn on its individual facts, and employers cannot institute a blanket policy of denying leave requests that they feel are insufficiently supported.
Terminating an employee during a probationary period does not shield an employer from potential discrimination liability. The use of the term “probationary period” does not lift the obligation to adhere to all federal and state anti-discrimination laws. A new employee often may be scrutinized more closely during the initial months of employment; however, the primary focus when evaluating an employee during any time period should be on factors such as job performance.
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