1006 HR Magazine: Court Report

Oct 1, 2006
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HR Magazine, October 2006




Stereotypes distinguished from sexual orientation in harassment claims; eliminating work travel did not violate the FMLA; more.

Wearing Pager Off Duty Is Not Compensable

Adair v. Charter County of Wayne, 6th Cir., No. 04-2457 (June 22, 2006).

Off-duty police officers who were required to carry pagers and leave them turned on, and were also required to remain within a specified geographic area, were not entitled to overtime compensation, according to the 6th U.S. Circuit Court of Appeals. It found that the officers were not so severely restricted in their personal activities that their off-duty time wearing a pager should be considered compensable work time under the Fair Labor Standards Act (FLSA).

All officers, as a condition of employment, had to live close to the Detroit airport. Furthermore, all officers agreed to carry a pager, which had to be worn and turned on, regardless of whether the officer was on or off duty. Most of the officers had agreed to respond to off-duty calls as a condition of employment. After a new director of public safety imposed several operational changes, including the elimination of comp time, the officers filed an FLSA suit for unpaid overtime and subsequent retaliation claims.

The district court granted summary judgment for the employer on all claims. The 6th Circuit affirmed, relying on precedents holding that off-duty on-call time is compensable only if the employer imposes burdens so onerous that employees cannot use the time effectively for their own pursuits.

The court rejected all three arguments advanced by the plaintiff officers to show that they were severely restricted in their personal activities.

First, the officers had said that the threat of discipline for failing to respond to a page restricted their personal pursuits. The court found that the facts were just the opposite: The plaintiffs had admitted that there was no interference with any of their regular off-duty activities.

Furthermore, even if the facts were otherwise, the plaintiffs had cited no legal support for their position. The mere threat of discipline would not prevent effective use of personal time, according to the court.

Finally, the policy requiring officers to wear pagers had no disciplinary provision, and, in fact, no officer had been disciplined for failure to respond to an off-duty page.

The court was likewise unmoved by the officers' arguments with respect to the fact that their off-duty movements were limited geographically. While agreeing that the geographical restrictions on where they could live were severe, the court pointed out that some of the officers had specifically agreed to these restrictions.

More important, the plaintiffs admitted that they could engage in all their usual personal pursuits while off duty. Off-duty calls to work occurred very infrequently. Finally, even during a brief post-Sept. 11 period during which off-duty officers were required to remain close to home, the officers' personal activities were not restricted in any way. Because the time was used primarily for the benefit of the employees, not the employer, it was not compensable.

By Judith Ann Moldover, an attorney with the firm of Ford & Harrison LLP in New York.

Stereotypes Distinguished From Orientation


Vickers v. Fairfield Medical Center, 6th Cir., No. 04-3776 (July 19, 2006).

Harassment based on a gender-related stereotype can be unlawful under Title VII, but the 6th U.S. Circuit Court of Appeals refused to extend this prohibition to claims relating to harassment based on sexual orientation.

Christopher Vickers was a private police officer for Fairfield Medical Center in Lancaster, Ohio. In the course of his employment, he befriended a homosexual male doctor at the medical center. He also went on a Florida vacation with a male friend.

When co-workers learned of these relationships, they allegedly started to verbally harass Vickers with derogatory comments regarding his sexuality, including the use of homosexual epithets.

Vickers also asserted that he was harassed physically. In one instance, he alleged that during a training session he was handcuffed, a male employee simulated sex with him and a photograph was taken by his supervisor. The photograph was allegedly posted in a medical center window where it could be seen by officers, staff members and visitors.

Vickers said his supervisor told him that complaining about the harassment to upper management would be futile. After reporting the alleged harassment to managers and being dissatisfied with the medical center's response, Vickers resigned.

He sued the medical center alleging sexual discrimination and harassment in violation of Title VII. The district court dismissed his claim, relying on Title VII's inapplicability to claims of sexual orientation discrimination.

One required element of a Title VII sexual harassment claim is that the harassment be "based on sex." In 1989, the Supreme Court held in Price Waterhouse v. Hopkins that harassment may be based on sex if the complained-of conduct relates to sexual stereotypes. Specifically, an employee complaining of harassment based on a failure to conform with gender stereotypes can state a Title VII claim.

Vickers argued that his co-workers found his alleged sexual practices to be feminine. So, Vickers asserted, he was harassed based on his alleged failure to conform with traditional masculine stereotypes. The appellate court disagreed and affirmed the dismissal of the action.

The appeals court emphasized that cases involving unlawful sexual stereotype harassment generally concern appearances or behaviors. For example, a male employee who is harassed because he appears effeminate or a female employee harassed because she behaves "too masculine" could state a Title VII claim. The court noted that all of the acts alleged by Vickers related to his perceived sexual orientation.

Due to Vickers' failure to allege that he was perceived as not conforming with observable and traditional gender stereotypes while at work, the court found that he could not state a claim.

By Scott M. Wich, an attorney with the law firm of Clifton Budd & DeMaria LLP in New York.

Eliminating Travel Did Not Violate FMLA


Smith v. East Baton Rouge Parish Sch. Bd., 5th Cir., No. 04-31199 (June 22, 2006).

The Family and Medical Leave Act (FMLA) permits the elimination of work travel from an employee's job if the job description is rewritten during the employee's leave, provided the employee's duties after the leave are virtually identical to the ones performed before the time off, the 5th U.S. Circuit Court of Appeals held.

The East Baton Rouge, La., Parish School Board employed Phyllis Smith as its assistant supervisor of school accounts. Prior to her leave, this position required her to travel to various schools and directly assist school principals and staff members in keeping accurate accounting records. During Smith's maternity leave, the board restructured the school accounts department and revised her job description so that she would audit the schools' books from a central office rather than by traveling to schools.

Smith sued under the FMLA after she returned, but the district court granted summary judgment to the board, holding that Smith's position after her FMLA leave was equivalent to her former position. In discussing "equivalent," the court cited the FMLA and stated that the position must be virtually identical to the former position in pay, benefits and working conditions; must involve substantially similar duties, skills and authority; must have similar opportunities for promotion and pay increases; and must be viewed as equally desirable to employees.

The court concluded that "de minimis, intangible changes" to an employee's position do not violate the FMLA. The elimination of travel responsibilities when the position no longer required travel to audit the schools' accounts, combined with providing the same salary and similar job description and title, amounted to only an intangible difference in employment position that did not violate the law.

By Sarah T. Zaffina, an attorney with the law firm of Albo & Oblon in Arlington, Va.

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