Age Discrimination or Disciplinary Policy Exception: Why Does the Text Message Generation Get More Chances?

Does your company state that it will not discriminate on the basis of age, race, religion, color, nationality, disability or gender?  Does your company also have a written progressive disciplinary policy? Do your supervisors always follow each step of the progressive discipline policy?  A new court ruling says that if they don’t, you could successfully sue and win significant money damages pursuant to the Age Discrimination in Employment Act (ADEA).

The Real Case of Cynthia and Leann: Cynthia Kildoo and Leann Richter worked as retail sales associates (RSA’s) at a Cellular One store. Both were over 40. The company set specific sales quotas for its RSAs.  For those who failed to meet their quotas, like Cynthia and Leann, Cellular One instructed its store managers to follow its written “progressive discipline” procedure that was spelled out in the company’s policies.  To make sure that store managers used the discipline process fairly and consistently, the company required a second review before a store manager could take disciplinary action against an employee.  There were five stages in the published process the company said it would follow when disciplining RSA’s:

Cynthia and Leann’s Store Manager fired them because the two women did not meet their sales quotas five times during a 12-month period. These two, however, thought Cellular One really fired them for their age and not for their job performance.  They believed Cellular One wanted to get rid of older workers because the younger, text messaging RSAs also failed to meet their quotas, but the younger sales people were not fired.  Both Cynthia and Leann filed age discrimination lawsuits against Cellular One pursuant to the ADEA.

In court, Cythia and Leann argued that Cellular One’s inconsistent application of its disciplinary policy showed the company’s bias against its older workers. The two women pointed to the younger RSAs who also failed to meet the company sales quotas.  But Cellular One did not terminate the younger RSAs.  Cynthia and Leann lost their jobs while the younger employees performed in a similar manner, but did not. 

Cellular One was confident that it’s full disciplinary policy would vindicate the company in court.  The company showed that the full disciplinary policy actually stated that the company “reserved the right” to impose different levels of discipline based on the particular infractions of each case. (Whitesell v. Dobson Commc’ns t/a Cellular One, 2008 WL 474270 (W.D.Pa.), 102 Fair Empl.Prac.Cas. (BNA) 1608).

Who Won In Court, and What Does It Mean for Me?

The trial court found that Cellular One could not make “exceptions” to its progressive discipline policy because most of the so-called “exceptions” allowed younger workers to keep their jobs, while workers over 40 were terminated.  When an “exception” causes a protected class (like employees over 40) to be treated worse than the group of employees as a whole, then each so-called “exception” is actually an act of illegal discrimination.

The court noted that Cythia and Leann “pointed to such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Cellular One's] * * * reasons for its action that a reasonable [jury] could rationally find them unworthy of credence.”  In otherwords, because Cellular One’s story was full of holes, the women’s case was allowed to proceed to trial.

The Undercover Lawyer’s Take-Away Tips:

1. Know Your Company’s Discipline Policy. Find a copy of your company’s discipline policy.  Usually it is in an “employee handbook” or “personnel manual” that employees are given on the first day of work.  Keep a copy at your desk, and another copy at home.  Does it talk about “progressive discipline”?

2. Does The Policy State When Exceptions Can Be Made? Many companies have discipline policies that allow exceptions “for extreme circumstances,” such as employee theft or when an employee commits a felony.  This is actually good, because it indicates that exceptions should NOT be made for simple performance or “attitude” issues — which are frequently caused by the attitude of the supervisor, not the worker.

3. Always Document Exceptions To the Policy. Detailed record keeping is a HUGE part of appearing credible and honest in front of a judge or jury.  If you can use your notes to state the names, dates, and basic facts of when your supervisors did not follow the company’s discipline policy, but your supervisors themselves have no notes, who do you think will be more believable?  That’s right: You!  So keep a journal of any employee discipline that you know of or hear about when the policy is not followed perfectly.  And you don’t need to keep a little book at your desk marked “Journal”.  Instead, just write an email and send it to your personal email account, like Yahoo Mail, Hotmail, or Gmail (but beware employers who monitor email).  Or, simply write the facts down in an innocent looking palm-sized spiral notebook labelled “Grocery List.”

Can You Be Harassed at Work by …a Radio?

You know those creepy people who drive around real slow with their car stereos blaring? Those creepy people have jobs. And when you are stuck sitting next to one at work, you can’t just start up your cubical and drive away.

Your co-workers’ radio volume isn’t the only reason you may feel harassed by a co-worker’s listening habits. More and more people have portable satellite radios, which broadcast without the decency restraints the FCC places on traditional AM/FM radio shows. Sexually explicit talk and songs lyrics laden with swear words commonly come out of satellite radio (and sometimes come out of regular radios and CD players).

Satellite radio isn’t the only new source of music in the workplace. Computers can “stream” radio shows and podcasts and play them through the computer’s speakers. Podcasts (digitally recorded music or talk) cover every possible topic under the sun – including explicit talk that does not usually see the light of day. Modern computers can also play music CDs, and like satellite radio, CDs are not censored by the FCC.

If you have to put up with a co-working playing radio shows, CDs, or podcasts that are off color, offensive, or downright discriminatory, is your boss at fault for not stopping it? A woman named Ingrid Reeves tried to do just that, and the court just decided her case.

Ingrid Reeves Complained About Her CoWorkers’ Radios

Ingrid Reeves worked as a sales representative in a cluster of cubicles where she was the only female. Her co-workers played radio programming that featured frequent talk about women as sexual objects. Reeves was offended by discussions on the radio about: (1) the breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications of sexual arousal; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography.

Advertisements aired during the radio program also included topics that offended Reeves, such: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When she complained about the radio Reeves’ co-workers told her she could just change the channel if she was offended. But when she did change the channel, her male co-workers changed it back.

Reeves did complain to her branch manager. The branch manager did talk to the male employees at a company meeting about changing their language and behavior. But nothing changed.

In fact, the afternoon before one male employee’s last day at the company co-worker told Reeves “You better bring your ear plugs tomorrow…” The male sales rep said the departing employee could say what ever he wanted on his last day work, since he couldn’t be fired on that day.

Reeves Co-Workers Used Graphic Sexual Language That She Overheard

In addition to the radio programming, one of Reeves’s co-workers frequently used sexually crude language that offended her. This employee, according to Reeves, “was consistent, [a]cross the board, day in and day out, in the sexually offensive language, phrases, jokes, songs, comments, remarks.” She said that he often used the phrase “f__ing bitch” or “f___ing whore” after hanging up the phone; he once called the only other female employee in the office a “bitch” after she had left the room, and he once remarked that she had “a big ass.” Sexual jokes by this co-worker were also commonplace, including one for which the punch-line was “f___ your sister and your mother is a whore.” Finally, he once said, “she’s a cunt,” referring to a female. Reeves told this co-worker on multiple occasions that his language made it difficult for her to work, but he did not change his behavior.

Eventually Reeves quit and filed suit, claiming she was subjected to a sexually hostile work environment. To win in court, Reeves needed to be able to show that:

…the harassing behavior was “severe or pervasive” enough cause a reasonable person to feel compelled to quit.

The company responded to Reeves’ suit by arguing that Reeves shouldn’t be allowed to bring such a lawsuit at all. The company claimed that Reeves couldn’t sue because she wasn’t the target of the conduct; she merely overheard the discriminatory talk radio shows and male banter because she sat in the same set of cubicles as “the guys.” A lower court agreed and dismissed her case, saying none of the talk—either from co-workers or the radio—was directed at Reeves. Reeves appealed. What did that court say? (Reeves v. C.H. Robinson Worldwide, Inc., (April 28, 2008)

How Did the Court Rule?

The Court ruled that “sex specific” profanity, including words such as “bitch,” “tramp,” and “slut,” are “more degrading to women than to men.” The Court ruled went on to say that “the daily exposure to language and radio programming that are particularly offensive to women—despite the fact that it may not have targeted Reeves specifically”–was enough evidence to send the case to a jury.”

The Court of Appeals reversed the ruling and reinstated Reeves’ harassment case against her former employer.

Undercover Lawyer’s Tips To Take Away

1. Speak Up About Co-Workers’ Radios. In several recent cases fed up employees were able to show that their work place was “hostile” toward women in part because of radio programming. Take note if your employer doesn’t have a policy about radios in the work place, or does not enforce its policy about radios in the work place. Be sure to tell your boss that you are offended by your co-workers’ radios.

2. Hand Your Boss A Copy of Reeves’ Case. Companies are shocked when employees know more about the law than the managers or the H.R. people. This is because employers spend thousands and thousands on attorneys – but attorneys want to keep their knowledge to themselves or else they are no longer needed. On this site you can quickly become a legally savvy employ. Just print out the Reeves case, hand it to your supervisor, and say “I’m offended by my co-workers’ music and the radio shows they listen to. You have to make it stop.” Here’s where you can print a free copy of the case: Reeves v. C.H. Robinson Worldwide, Inc.

3. You Can Rely Only on Radios to Make Your Case To Your Boss: To win a lawsuit you will probably need more evidence than offensive radios at work. But your boss should not require any more “evidence” from you before taking action and putting a stop to offensive radio programs. You know why? Because if your boss ignores you, then you have TWO pieces of evidence to show a court: 1) the offensive radio; and 2) the fact that you complained to your boss and your boss brushed you off. If that happens, your boss is only giving you more ammunition to use against your employer in court or in an EEOC complaint.

Is Time Off On FMLA Really Time Off? (Or, do you have to maintain your full-time work load while working a reduced-time schedule?)

Case: Lewis v. School District #70 (April 17, 2008)

A federal court case established for the first time that your employer can NOT expect you to maintain a full time work load when you are off work under the FMLA. The Federal Court of Appeals for the 7^th Circuit held that employees using their FMLA rights to be away from work cannot be held to the same requirements as full-time employees who are at work all day. Your company violates federal law if it tries to discipline or fire an employee who is on FMLA leave because he or she is isn’t producing as much work as the employees who are not on leave.

A Good Worker Must Live Through Bad Times

The worker in this new case was Debra Lewis. Debra began working for Illinois School District #70 in September of 1997 as a bookkeeper and treasurer. For seven years she received good reviews and everyone agreed she performed her job well. Until 2004. When she started using FMLA leave. That changed everything.

In 2004 both of Debra’s parents became terminally ill. A dutiful daughter, Debra tried to care for her father at home. And it was at home, in May of that year, that he died. At the end of that same month Debra’s mother came home from the hospital. Debra’s mother then needed constant care from Debra.

As a result of all of this, Debra often missed work. Her immediate supervisor at the school district, Dr. Hawkins, gave Debra permission take this time off work in order to care for her parents. During the School District’s 2004 fiscal year, Debra missed 72.5 days of work out of a total of 242.

The Boss Has an Attitude Change Toward His Employee

When she was out Dr. Hawkins encouraged Debra to take her work home get it done whenever she could, including on evenings or weekends. She completed much of her work in this way. Dr. Hawkins complained that Debra’s “flex-time” schedule was forcing other employees to alter their schedules to cover for her. Dr. Hawkins also did not like that Debra was not available to answer questions during regular work hours.

The school board wanted to fire Debra for poor performance. Dr Hawkins, to his credit, expressed fear of FMLA liability. So instead firing her, Hawkins offered Debra 12 weeks of unpaid intermittent FMLA leave. Debra accepted.

Even though Debra was on unpaid intermittent leave, Dr. Hawkins still expected her to perform all of her regular work duties. The school board didn’t hire a part-timer or ask co-workers lend a hand. Debra worked nights and weekends to catch up with her work, but it was all unpaid.

The Conflict Takes a “Ludicrous” Turn For the Worse

The school board, at tape recorded meetings, said it wanted to fire Debra and called the FMLA “ludicrous” and a “fiasco.” The board told Dr Hawkins to build a case against her based on her “poor performance” so she could be terminated. Eventually, Debra was given a choice: resign or take a demotion and salary cut based on her poor performance.

Just like I recommend in Work Laws Exposed, Debra kept her job and then went on the offensive. She accepted the demotion offered by Dr. Hawkins, but then immediately filed an FMLA lawsuit. The school district argued that it had a legitimate non-FMLA reason to fire her: poor performance

The Conflict in Court: Who Won?

The first court said that Debra could be held to the same standards as regular full time employees. The Court of Appeals, however, reversed the lower court. The Court of Appeals stated that the School District could not have Debra working and being paid for a part time schedule (on FMLA leave), but require Debra to produce a full time amount of work. With this double standard the School District wasn’t really giving Debra FMLA leave at all. In fact, the District merely allowed her to do some work from home, but reduced her pay for the privilege.

That is not what the FMLA requires. The FMLA does allow an employer to not pay an employee for the periods the employee is out on medical leave. But if the employee is off work on unpaid leave, the employee must truly be relieved of their duties.

Undercover Lawyer’s Tips To Take Away:

1. Your employer must reduce the amount of work you are required to complete in proportion to the amount of time you are away from work when you use FMLA leave.

2. If your employer gripes and complains about the FMLA, immediately write down their exact remarks; then, sign and date your notes. Courts do not like employers who talk negatively about the law.

3. Your employer should arrange coverage for the work you are missing (from another employee or a temp employee); if no coverage is arranged, you may have an FMLA retaliation claim just like Debra Lewis did.

“Work Laws Exposed” Launched

This last month my new eBook “Work Laws Exposed” launched at www.worklawsexposed.com; this blog will, however, do much more than support the book. Over the coming weeks and months we will be adding articles, tips, and breaking news from the perspective of how you can use legal strategies to have a better work life. And what does “having a better work life” mean? Here are some examples:

1. Getting humane, respectful treatment from your boss rather than abusive behavior, sabotage, micro management or a hostile work environment;
2. Stopping a bully or backstabbing co-worker from ruining your days, if not your life, and getting those people kicked to the curb where they fit in with the rest of the trash;
3. Fighting back against unfair, unwarranted discipline such as a new manager who starts making crazy changes that don’t work and then starts “writing up” everyone who doesn’t worship the new manager and their ineffective style;
4. Taking large blocks of time off of work even if your boss does not want to let you;
5. Getting a flex schedule even if your boss tells you that you can’t have one.

In addition, since I’m writing “from behind the lines” I can also show you the latest strategies the other side (employers, their lawyers, and H.R. people) is using to minimize your workplace rights and how to counter their strategies. One of the best aspects of the “blog” format is that you can also post responses, questions, and comments about what you see in the workplace. Together we can work at finding solutions that utilize the power of the law.

And finally, are a few things that you will NOT find at undercoverlawyer.com or anywhere in “Work Laws Exposed”:

• Advice that you should do a better job at meeting your boss’s needs;
• Claims that work problems are “a two way street” and you need to be more “sensitive” toward bullies and bitches; or,
• Psychology-based “understand-how-your-boss-thinks” advice available elsewhere on the internet.

None of that here.

I wish it wasn’t true, but in all my years as an employment litigator and adviser to H.R. departments I have never seen a jerk boss or jack ass co-worker turn into a nice person. Not once. I will never advise you to solve your problems by understanding how your boss thinks. This place is about using the power of the law to force the bad guys to treat you fairly, or to pay you a fair severance package and let you walk away with your finances and dignity in tact. Accept nothing less for yourself. You deserve it.

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