There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

lettersPicture this scenario:

You come into your office one morning to learn that an employee has filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that you failed to accommodate his disability reasonably and then terminated his employment because of his disability.

As if that isn’t challenging enough, many months afterwards, you receive a request from the EEOC to provide the names and contact information of his fellow employees who worked for you at the same time as the original complainant, as part of the EEOC’s investigation into the complaint.

This type of scenario isn’t uncommon; the state agency investigating discrimination complaints (CHRO) often requests information on co-workers as part of the investigation and sometimes requests that these co-workers be available for interview.

But here’s where the scenario gets interesting — and this story is based on a ruling on a motion to dismiss in federal court just this week in the EEOC v. Day & Zimmerman case.  The employer’s in-house counsel — seemingly with reference to outside counsel as well — decided to notify the co-workers of the request.

Indeed, the employer sent a letter to approximately 146 individuals, all of whom were members of same union as the Complainant and all of whom had worked, or continued to work, for the employer.  Whether you view the letter as an innocuous helpful note, or a nefarious threat will depend on your perspective.

In the letter (which you can download here at part of the employer’s filings — page 49), the employer identified the complainant by name, and indicated that he had filed a charge of discrimination on the basis of disability. The letter went on to identify the Complainant’s union local, the medical restrictions on his ability to work, and the accommodation he had requested. It further informed the recipients of their right to refuse to speak to EEOC investigator and offered them the option to have the employer’s counsel present if they chose to speak to EEOC.

Is there anything wrong with the letter?

According to the EEOC, yes (download here). The EEOC alleged that this letter constitutes retaliation against the original Complainant for opposing conduct made unlawful by the ADA. The EEOC further alleged that the letter interfered with the Complainant and the recipients of the letter in their the exercise or enjoyment of rights protected by the ADA, including the right to communicate with EEOC, the right to participate in an EEOC investigation, and the right to file a charge of discrimination with EEOC.

The employer, as you might imagine, vehemently disagreed and filed a motion to dismiss the complaint (download here).  It argued that the lawsuit “exemplifies the U.S. Equal Employment Opportunity Commission (“EEOC”)’s enforcement position of ‘do as I say, not as I do.'”  It noted that the EEOC, through the lawsuit itself, publicized the same information it now criticizes the employer for doing, even though the employer was obligated — it argues — to do so by the Rules of Professional Conduct (simply, the ethical code for attorneys).

The employer also argued that the letter explicitly re-affirmed the employer’s policy against retaliation, its commitment to equal employment opportunity, and the “employer’s position that a decision to speak with the EEOC investigator ‘will not have an adverse impact on your current or future employment.'”

The federal court rejected the employer’s motion to dismiss (ruling available here for download); in doing so, it emphasized that under the standards governing review of such motions, it must construe the federal complaint in a light most favorable to the EEOC. After doing so, the court concluded that the allegations were sufficient to state a claim for ADA violations  even though the Complainant had already been terminated from employment at least 17 months prior to the letter being distributed.

As a starting point, the court noted that “Routinely, courts have held that, when an employer disseminates an employee’s administrative charge of discrimination to the employee’s colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.”  And the court concluded that, again construing the facts most favorably to the EEOC, the letter was sent just three months after the employer learned that the EEOC intended to pursue the complaint seriously:

Here it is plausible that the first opportunity to retaliate against [the Complainant], whom they had already terminated, was when the EEOC provided a list of fellow union members to whom Defendant could disseminate the potentially damaging EEOC charge.

The court also addressed the seldom-litigated issue of an interference claim under the ADA. It noted that neither the Supreme Court nor the Second Circuit has outlined a test for such a claim. (Though query whether the court overlooked the Second Circuit case of Gradziano — or at least had written its opinion before that one came out.)

Here, the court concluded that while there was no allegation of any direct evidence of the employer’s intent behind the letter, the issue of the employer’s intent “is a question of fact that cannot be resolved on a motion to dismiss.”

Moreover, the fact that the employer disclosed “sensitive personal information” about the Complainant could dissuade the Complainant and the co-workers from communicating further with the EEOC.

Obviously, this lawsuit if far from over.  Both the EEOC and the employer have staked out positions that make a compromise seem unlikely.  And so the case will likely proceed to discovery and then another round of motion practice.

For the rest of us though, this case — and the issues it touches upon — is again worth following.

In the meantime, employers should be very wary of mass notifications of discrimination charges to co-workers (former or current) in response to an EEOC inquiry.   Left unclear from the decision is whether there are any circumstances in which the employer can notify co-workers of the inquiry and at what level of detail.  Would an e-mail indicating that the EEOC may be contacting them but without the details of the Complainant’s complaint pass muster?  How strongly should an employer emphasize its policies prohibiting retaliation?

Employers are going to want to tread very carefully for now and consult their counsel about any communications going out.

Beware the Beatles.
Beware the Beatles.

For years, I’ve been “warning” about the upcoming holiday of Valentine’s Day.

Back in 2011, I recapped several cases where employees’ inappropriate behavior on this day of love, led to lawsuits.

Apparently, there were some people who didn’t read the blog, because just a few years after that, I recapped a few more cases where Valentine’s Day led to a few more lawsuits.

My friend, Jon Hyman, this week cited a few of the same cases in his reminder that he hates Valentine’s Day.

Now, I could use this post to rehash the same worn reminders that sexual harassment is bad and that romantic relationships between employees can be even worse.  (Wait, see what I did there?)

But harassment cases still occur.

So, let me try a new approach this year; let’s try the opposite and Let Love Rule The Workplace!

Who am I to tell others who to love? Who am I to stand in the way in Cupid’s arrow?  Here are three “tips” on how to add love to the workplace:

  • First, be sure when you have a crush on someone to play favorites towards him or her.  And if they turn away your advances? Let them know your displeasure by giving work elsewhere. That will remind them that love should rule the workplace.
  • Second, why establish a policy regarding sexual harassment? Who needs rules regarding love? And what should you do if your company has such a policy? Well, then just ignore it! Let love set the rules of the workplace.
  • Third, if you hear of “love” going on in the workplace, just turn a blind eye.  Love needs no witnesses and true love will work itself out eventually. And if it doesn’t, well, the workplace is no place for the broken-hearted.

And here’s a bonus tip: Be sure to have your lawyer on speed-dial.  Because if you follow these tips, you could pretend you’re a hopeless romantic, but you’re most likely to be found liable of sexual harassment.  You may need something more than love to survive in the workplace.

(P.S. If you can’t figure out that the above tips are SATIRE, you should give me a call. Chances are you’re doing something else wrong too and I’d love to help.)