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LAS VEGAS—Saying that he wasn’t going to highlight the egregious, outrageous cases but rather focus on“some cases applicable to HR professionals and what you’re handling on a day-to-day basis,” Shaun P. Haley, an attorney in the Las Vegas office of Ogletree Deakins, highlighted lessons for HR in his session, “The Top 10 Employment Cases of 2011,” held June 27, 2011, at the Society for Human Resource Management (SHRM) 63rd Annual Conference and Exposition.
First noted was the “associational discrimination” case of Thompson v. North American Stainless LP, decided by the U.S. Supreme Court. An engineer was terminated after his fiancée, employed by the same company, filed a sex discrimination charge. The engineer claimed illegal retaliation under Title VII, and the court ruled that his case could proceed, noting that those closely related enough to the person who has filed a charge to be in the “zone of interest” were also protected from retaliation.
“It is the ‘zone of interest’ test that will drive HR crazy,” Haley said. The court didn’t say how close the relationship must be. It depends on the individual facts and circumstances and should be evaluated on a case-by-case basis.
So now, Haley noted, not only must HR professionals look at the employee who has filed charges, but they must also look at “his or her relationships within the workplace.”
Another retaliation case, Kasten v. Gobain Performance PlasticsCorp., concerned an employee who made an oral complaint to his supervisor about the location of time clocks, saying that he had to put on protective gear before he could clock in and therefore wasn’t being paid for time worked in violation of the Fair Labor Standards Act (FLSA). The employee was terminated and claimed that the employer had violated the anti-retaliation provisions of the FLSA. The Supreme Court ruled in the employee’s favor, saying that a complaint need not be in writing to trigger the anti-retaliation protections of the law.
What HR can learn from the Kasten case, Haley said, is that “oral complaints need to be handled immediately.” HR should clarify policies so employees know who handles complaints. Further, managers must be trained not to “sit on oral complaints” thinking that “they will just go away.”
A third case of note to HR is Pellegrino v. CWA, decided by a Pennsylvania district court. In Pellegrino, a woman who was on leave pursuant to the Family and Medical Leave Act (FMLA) went to Cancun on vacation in violation of her employer’s policy that those on medical leave could not travel. She was terminated, and the court upheld her discharge.
What this case means for HR, Haley said, is that, despite frequent complaints about abuse of FMLA leave, “there are tools employers can use to monitor such leaves.” The time off can be restricted as long as the restrictions uniformly apply to all employees on medical leaves, he explained.
In the “cat’s paw” case, Staub v. Proctor Hospital, the Supreme Court ruled that even if the HR professional who discharged a military reservist had no anti-military bias, the reservist could proceed with his claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA) because he had been previously disciplined by a supervisor who exhibited bias, and the disciplinary action factored into his discharge. The lesson for HR: “Do an independent investigation of discipline if a discriminatory motive is involved,” Haley said.
In Fleck v. Wilmac Corp., a Pennsylvania district court decided that, under the Americans with Disabilities Act, as recently amended, the focus will be on what the employer is doing to comply with its statutory reasonable accommodation obligation and not on whether the plaintiff is “disabled” or “qualified.” From now on, “the court will focus on the interactive process,” Haley noted.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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