Too Pretty to Work on an Oil Rig?

It is often difficult for a female applicant for employment to prove that an employer refused to hire her because of her gender.  In a recent case, the female applicants did not have such difficulty – they presented evidence that the employer told female applicants that it does not hire women because it only has “‘man camps,’ that women were ‘too pretty’ and that their presence would ‘distract the men.’”   This evidence led to a $400,000 settlement with the EEOC and is a reminder (not that one is really necessary) that employers cannot refuse to hire women, no matter how distracting their presence might be to male co-workers.

EEOC Issues Guidance on Employee Wellness Programs

Next week, the EEOC will publish proposed rules addressing how the ADA applies to employee wellness programs that are part of group health plans and that include questions about employees’ health or medical examinations.  In the interim, the EEOC has issued a Fact Sheet for Small Business and Questions and Answers for the general public. The big issues addressed include: what constitutes a wellness program; medical exams and inquiries in the context of employer sponsored wellness programs; incentives for participation; and confidentiality of medical information provided in connection with wellness programs.

The fact sheet is here:

Q & A here:

Don’t Transition Transgender Employee out the Door

To date, the EEOC has filed two lawsuits against employers for discriminating against transgender employees.  Today, a settlement was announced in one of the two cases.  The settlement requires the employer to pay $150,000, implement a new gender discrimination policy, and provide training to management and employees “regarding transgender/gender stereotype discrimination.”  In the lawsuit, the EEOC alleged that the employer terminated the employee after she began to present as a woman and notified the employer that she was transgender.  The employee had previously performed satisfactorily and was terminated only after she began to transition from male to female.  From the EEOC’s perspective, the employer’s actions constituted discrimination on the basis of sex, “which includes non-conformance with gender stereotypes.”

It’s Different for Employees in California

In California, with a few very narrow exceptions, any contract that restrains anyone from engaging in a lawful profession, trade or business of any kind is void.  Cal. Bus. & Prof. Code § 16600.  As a result, non-competition agreements with employees are typically unenforceable.  Earlier this week, the Ninth Circuit Court of Appeals looked at the issue of whether a “no-employment” provision in a settlement agreement between a doctor/employee and his former employer (a large consortium that manages and staffs hospitals, clinics and facilities) was an illegal restraint.  The “no-employment” provision barred the doctor from seeking employment with his former employer, as well as any facility owned, managed or contracted with his employer.  The provision also permitted the doctor to be terminated if the former employer acquired an ownership interest in, or began to manage, a facility where the doctor worked in the future.

The lower court found that the “no-employment” provision in the settlement agreement was not a covenant not to compete because it did not preclude the doctor from working for a competitor of his former employer or at another hospital or facility not operated by his former employer.  The Ninth Circuit disagreed.  The Court found that Section 16600 prohibits covenants not to compete as well as other contractual restraints on professional practice, and remanded the case to determine whether the “no employment” provision constituted “a restraint of substantial character on [the doctor’s’ medical practice.”

For employers with employees in California, this decision suggests that any provision in an employment agreement or settlement agreement that substantially restrains an employee’s ability to engage in their profession, trade, or business, will be subject to challenge.

Second Guessing A Doctor’s Release

A recent EEOC settlement highlights the risk of ignoring a doctor’s full release.  According to the EEOC, the employer refused to return an employee to his job after the employee had a heart attack. The employee was released to work by his doctor with no restrictions but the employer refused to put him back to work (except for two days).  The EEOC alleged that the employer violated the ADA because it discriminated against the employee based on actual or perceived disabilities.  The EEOC release does not include the employer’s explanation for its actions, only that the employer paid $50,000 to resolve the claims.  However, the case is a reminder to employers not to substitute their own perceptions of an employee’s ability to work, for an employee’s doctor’s opinion (unless the employer is also the employee’s doctor – a situation that the EEOC has not yet addressed).

U.S. Supreme Court Rules on Pregnancy Discrimination

Yesterday, the U.S. Supreme Court issued an opinion in Young v. UPS, in which it addressed the Pregnancy Discrimination Act’s requirement that employers treat pregnant employees the same way they treat other employees in the same job.  The Court held that an individual pregnant worker who seeks to show disparate treatment may make out a prima facie case by showing that: she belongs to the protected class; she sought accommodation; the employer did not accommodate her; and the employer did accommodate others “similar in their ability or inability to work.” The employer can respond with legitimate nondiscriminatory reasons for denying accommodation which the employee may then rebut by showing the stated reason is pretextual.  The Court then held that the plaintiff created a genuine issue of fact as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers.

As a practical matter, based on the Court’s decision, employers should tread very carefully when applying “light duty” policies and should not restrict light duty positions to employees with work-related injuries.

The decision is here:

Managing/Terminating Toxic Employees

The Portland Business Journal has an interesting article about how to manage toxic employees who are also superstars.  The article recommends that an employer’s approach to the toxic employee should take into account both the mission and goals of the employer.  The employer’s approach should also involve consulting with counsel to consider the legal risks of terminating the employee, and whether it is possible to minimize those risks.  For example, if you have a toxic employee whose bad behavior has not been well documented, putting the employee on a performance improvement plan could satisfy the goals of the employer and reduce legal risk: it gives the employee a chance to correct the toxic behavior and let’s the employer  remedy its lack of documentation for the employee.  The article is here:

Give the Woman a Mat to Stand On

We frequently post about employer obligations to accommodate disabled employees.  Generally, accommodation is required unless an employer can show that the requested accommodation imposes an undue hardship. Not surprisingly, litigation often focuses on whether a particular accommodation imposes an undue hardship, an analysis that considers the nature and cost of the accommodation, the financial resources of the employer, the number of employees and effect on expenses and resources of the employer, and the type of operation involved (among other facts and circumstances).

Recently, the EEOC announced a settlement with an Atlanta employer who was alleged to have refused to provide an employee with a mat to stand on to accommodate the employee’s scoliosis.  The employer was also alleged to have fired the employee when she complained that she was being subject to discrimination.  The EEOC’s news release does not include information about the employer’s explanation for why it terminated the employee, or whether the employer argued that providing a rubber mat created an undue hardship.  However, it is unlikely an employer could establish that providing a rubber mat entailed significant difficulty or expense.


Fake on-the-job Injuries and Impersonating Seahawks Players

A Washington man was recently charged with 12 felonies for obtaining illegal and prescription drugs by fraud.  On 17 separate occasions, the man visited hospitals or urgent care clinics and claimed to have suffered an on-the-job injury.  At the medical facilities, he filled out workers’ compensation claim forms using his first name and the last name of a Seattle Seahawks football player or another professional ball player or coach.  According to the Washington Attorney General, among “the last names of football players and coaches he’s accused of using: Harvin, Largent, Sherman, Mora, Richardson, Hollenbeck, Robinson, Okung, Marino, Bledsoe and Henderson. He also used the surnames of stars from other sports: Malone, Langston and Duckworth.”  In addition, four of the employers listed on claim documents did not exist.

The scam was discovered when one of the employers listed told the Washington Department of Labor & Industries that it believed the claim was filed by a former employee and a handwriting expert confirmed that each of the injury and accident reports matched the employee’s handwriting.   There is no lesson here, except maybe that truth is stranger than fiction.