Rosen Law Office

A Costco employee had an eyebrow piercing that violated the company’s dress code. Management told her to cover it with a Band-Aid while she was working. This she refused to do. She explained that, as a member of the Church of Body Modification (“CBM”), she had to be a confident role model, proudly displaying her eyebrow jewelry at all times. Members of the CBM believe that–through rituals like piercing, scarring, tattooing and suspension—they strengthen the connection between their bodies, minds, and souls.

Costco fired her, and she sued. The First Circuit held that Costco would suffer undue hardship if it allowed the employee to display her face jewelry. “Courts have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges.” By allowing an exemption from the dress code, “Costco forfeits its ability to mandate compliance and thus loses control over its public image.”

This was a closer case than one might think. Initially, the Equal Employment Opportunity Commission determined that Costco had violated the employee’s civil rights. And this case may have turned on the fact that Costco was more reasonable in offering accommodations than the plaintiff was in refusing them.

It was a different matter when a high school freshman insisted that her membership in the CBM trumped the school’s dress code. She insisted on keeping her nose stud and got suspended. The federal district court for North Carolina granted an injunction against the enforcement of the dress code. If the student were not permitted to practice her religious beliefs, she would suffer greater harm than the school would, if it relaxed its dress code. The school ultimately abandoned its appeal and paid the plaintiff’s legal fees.

Neither courts nor employers are in a good position to determine whether a religious belief is sincere or not. When an employee complains that a neutral rule is infringing on her religious beliefs, wise employers will make a serious effort to reconcile those beliefs with the legitimate requirements of the business.

Are retirement deductions “wages”?

In Massachusetts, an employer who fails to pay wages within six days after the end of the pay period is liable for treble damages and attorneys’ fees. But what about payroll deductions that are supposed to go into a retirement account?  Does an employer get penalized for failing to invest them as directed?

In our case, yes.

A large Boston real estate company deducted wages from our client’s pay, stating that they were being invested in the employee’s retirement account.  The employee became curious when he wasn’t getting any account statements.  He repeatedly asked the employer about it but never got an answer.  Two years later, when he quit, the employer admitted it had never deposited the money.  Our client sued under the state’s Wage Act.

The employer took the position that payroll deductions weren’t wages, citing a case in which the City of Boston took longer than six days to invest patrolmen’s wages in their accounts.  But this was a special kind of retirement account in which municipalities own the funds until the employee is entitled to them.  In the usual case, the funds belong to the employee.

Besides, the Court said, the retirement account was never created.  “It defies logic to rely upon what was supposed to occur, but did not, as a basis for exoneration from the strict requirements of the Wage Act.”  Pacheco v. H.N. Gorin, et al., MICV2009-01946.

Photo: Orin Zebest

Frivolous cases are just part of the cost of doing business for most employers, but occasionally a judge will punish a lawyer who has gone too far.  A Verizon tech got high and smashed a company truck into a Jersey barrier.  When he was fired, he filed a workers’ compensation claim, both for his injuries and for the emotional distress the poor fellow had suffered.

The claim was denied.  He appealed—lost.   A further appeal—lost.  A new worker’s compensation case—dismissed.  Then a civil case—which was completely groundless.  Worker’s compensation is an absolute bar to personal injury lawsuits like this one, the Court observed.

In dismissing the civil case, a federal judge ordered the lawyer to pay Verizon $35,000 in attorneys’ fees, because he had “blindly forged ahead for a third pass.”  While the lawyer said he was just being a zealous advocate, the court disagreed. “[T]here is a point beyond which zeal becomes vexation, the ‘novel’ approach to a legal issue converts to frivolity and steadfast adherence to a position transforms to obdurateness. Here,  [the plaintiff’s attorney’s] judgment was clouded by [his] excessive zeal to the point that [his] performance became unlawyerly.”  McCarthy v. Verizon New England, Inc., Mass. (Stearns, J.) (USDC) (Civil Action No. 09-10991-RGS) (March 25, 2011)., quoting, Cruz v. Savage, 896 F.2d 626, 634 (1st Cir. 1990).

Massachusetts appears ready to pass a bill that will prevent discrimination on the basis of gender identity.  Basically, wherever a statute bars discrimination against people on the basis of sex or sexual orientation, the new bill adds the words, “gender identity or expression.”   That term means “a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s physiology or assigned sex at birth.”

According to the Mass. Transgender Political Coalition, the bill is necessary because transgender people in Massachusetts frequently encounter unequal treatment in employment, schools, housing, public accommodations, and access to healthcare.  They also report high incidences of violence and harassment.  The coalition cites a survey in which transgender respondents say they: experience unemployment at twice the rate of the population as a whole; are almost universally harassed on the job; are likely to be fired; and have disproportionately high rates of poverty.

The bill is at the Joint Committee on the Judiciary.   About a hundred legislators have signed on, and the governor has already signed an executive order preventing state government and contractors from discriminating.   If Massachusetts outlaws transgender discrimination, it will be the fourteenth state to do so.

In answer to the inevitable question about bathrooms, the bill entitles people to “the full enjoyment of such facilities … consistent with their gender identity or expression.”  That is, men who appear to be women will use the ladies’ room.

A new case restricts an employer’s ability to make deductions from an employee’s wages, even when the employee agrees. 

When employees of the ABC Disposal Service (yes, that’s the real name) were at fault in an accident, the company gave them a choice.  They could be disciplined, or they could pay for the damage.  A safety officer conducted a thorough review of the accident record and presented findings to the safety manager.  If the safety manager decided that the damage resulted from a preventable accident, he would present the two options to the employee.  If the employee chose to pay, instead of being disciplined, ABC would set up a repayment schedule with modest weekly deductions.  ABC never reduced the employee’s wages below the minimum wage.

Under Massachusetts law, employers are permitted to deduct for “a clear and established debt.”  They can’t enter into a special contract to withhold wages.  That’s exactly what ABC was doing here.  Besides, the process was one-sided.  ABC had the discretion to decide whether the employee was liable. 

As the Court said, “An arrangement whereby ABC serves as the sole arbiter, making a unilateral assessment of liability as well as amount of damages with no role for an independent decision maker, much less a court, and, apparently, not even an opportunity for an employee to challenge the result within the company, does not amount to ‘a clear and established debt owed to the employer by the employee.’”

The employer can dock wages only in a few situations.  These include: (1) an undisputed loan or wage advance (or a mistaken overpayment ); (2) employee theft or misappropriation established through an independent proceeding with due process protections; and (3) an employer’s judgment against the employee for the value of the employer’s property.  

While there may be other exceptions–for example, a deduction permitted under a union contract–the employer withholds wages at his peril.

A woman asked for seven weeks off to take her husband on a spiritual healing trip.  The employer denied her request.  She took the time off anyway for a series of healing pilgrimages with incidental socializing. 

Maria Tayag accompanied her husband on a trip to a healing ministry in the Philipines, where they went to mass, prayed, and visited with other pilgrims.  They also visited friends and family members.  Her husband did not obtain any medical treatment or see a doctor during the trip.  When Tayag was fired, she sued under the Family Medical Leave Act. 

While a person is entitled to take time off to care for a spouse with a serious health condition, the care has to be medically necessary.  Faith healing ordinarily doesn’t qualify.  There is an exception for Christian Scientists, but Tayag’s husband was not a Christian Scientist.   

The First Circuit did not want to extend the faith-healing exception to other religions.  There was a good reason for the distinction.  Christian Scientists rely solely on a religious method of healing, so there is no duplication for employers providing FMLA leave.  On the other hand, “Tayag’s husband gets ordinary medical care, and she has taken full advantage of the FMLA to provide assistance to him in connection with that care.”

Discrimination laws don’t just protect employees.  They also protect important people in the employees’ lives.  The term is “associational discrimination.”  Even if an employee is white, the employer cannot discriminate based on the fact that the employee associates with another person who comes within a protected classification or who has engaged in protected activity.

When a woman charged that she wasn’t getting the same raises as her male counterparts, she was protected against retaliation, so the employer fired her fiancée instead.  He sued under the theory that his firing—three weeks after his girlfriend had filed a charge of discrimination—was retaliatory.

The Supreme Court agreed.  In the case of Thompson v. North American Stainless, LP, the court held that a reasonable worker “might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  The Court found that Title VII protects not only the complainant from retaliation, but also those within the “zone of interests” which the law is designed to protect.

In a mirror-image case, a woman filed a charge of discrimination against Wal-Mart.  The company declined to hire her son or daughter, even though they had interviewed well, but hired less qualified applicants.  The court did not allow the son and daughter to file an associational claim like the one in Thompson, but did allow the mother to claim retaliation, even though she had not personally suffered an adverse action.  E.E.O.C. v. Wal-Mart Stores, Inc ., 576 F. Supp.2d 1240 (D.N.M. 2008).

Meanwhile, the Massachusetts Commission Against Discrimination found that a white boss created a hostile work environment for his white employee by insulting his Jamaican fiancée.   The boss felt that anything goes in the rough environment where he worked.  “This is a construction site, not Superior Court,” he told Massachusetts Lawyers Weekly,  “I deny making a hostile work environment.  As a matter of fact, everybody loved me at the place.”   But calling the employee a  “porch monkey lover,” among other things, went too far.  The stream of abuse was sufficiently severe and pervasive to alter the conditions of employment and create an abusive environment.

Even before the Supreme Court spoke, theory of associational discrimination was widely accepted.  In a 1996 case, the MCAD sanctioned a landlord when he refused to rent to a white woman, whose son was black.   Similarly, a white basketball coach stated a claim when he alleged that he was fired because his wife is African-American. “[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race,” the Second Circuit said.

Where do you draw the line?  When is the association too remote?  The answer is going to depend on the facts of each case, although Thompson does provide some guidance: “[F]iring a close family member will almost always meet the [retaliation standard] and inflicting a milder reprisal on a mere acquaintance will almost never do so.”

People who are overweight aren’t usually protected from discrimination.  But plaintiffs are still able to argue that they were discriminated against because the employer perceived them as being handicapped.

According to the Equal Employment Opportunity Commission, being overweight isn’t normally an impairment that would bring a person under the commission’s protection.  (Someone who is twice the normal weight may have physical issues that would qualify as impairments.)  Now, however, plaintiffs are successfully claiming that, although their weight was not an impairment, their employer thought it was. 

The EEOC recently filed suit on behalf of a woman who was fired due to her weight.   She had counseled children of mothers undergoing addiction treatment with the New Orleans office of Resources for Human Development.  The suit claims the employee was able to perform all the essential functions of her job, but her employer perceived her as being limited in major life activities, such as walking, and thus violated the Americans with Disabilities Act.  An EEOC official said the suit is “a classic case of disability bias, based on myths and stereotypes.”

Cases like this open the door to claims of discrimination based on appearance, rather than on true disability. For example, an obese man named Joseph Connor wanted to work for McDonald’s. He was promised a position but was told he would have to wait to start the job until a uniform could be specially ordered for him.  Months later, he still had not been given a start date, even though the restaurant had hired several other new employees in the interim. Connor sued under the ADA, alleging McDonald’s regarded him as disabled due to his weight. The case survived a motion to dismiss and eventually settled.

There are a few places—Michigan, New Jersey, and Washington, D.C., and a couple of municipalities—that bar discrimination based on weight.  Jennifer Portnick, an aerobics instructor in San Francisco, was initially refused a Jazzercise franchise because the company said she didn’t present the sort of fit image the company wanted to portray. Because San Francisco includes obesity in its human rights ordinance, Jazzercise settled Portnick’s claim and agreed to allow overweight instructors who otherwise meet fitness tests to buy Jazzercise franchises.  And in Michigan, petite Cassandra Smith is suing Hooters because the restaurant chain told her to slim down from her current 132 pounds to look better in her extra-small uniform.

There are some jobs in which a person’s weight is an important, neutral qualification.  For example, a city was able to terminate a firefighter who failed to meet generally applicable weight criteria.  But for most positions, employers should consider the person’s qualifications and abilities, and not his appearance.

If an employer doesn’t make a proper request for medical certification under the Family and Medical Leave Act, the employee apparently never has to provide it.

An employee got depressed and called in sick.  She stayed out of work for eighteen days.  She didn’t fill out an FMLA request, even though the employer asked her to.  She actually sent in a doctor’s note saying she was cleared to return to work. But she never came back.

Naturally, she got fired.  Four days later, a nurse practitioner sent a note saying the employee needed a month off.  By this time, it was too late.  Or that’s how the employer saw it.

The 6th Circuit disagreed.  An employee has 15 days to provide medical certification in support of a leave request under the FMLA.  The court found no evidence that the company formally requested the medical certification in accordance with the FMLA regulations.  The company’s FMLA leave form failed to include information, required by the FMLA regulations, about FMLA certification or the consequences of not returning the certification in a timely manner.  A reasonable jury might find that the 15-day certification period was never triggered.

In other words, a jury could find that the nurse practitioner’s note—received after the employee had been terminated—was a timely medical certification showing that the employee was entitled to FMLA leave.

The lesson for employers?  Make sure your FMLA request form provides the required warnings and send it to the employee—along with your request for certification—as soon as you can.  Then wait the full fifteen days after receipt before making a decision about termination.

An amendment to the Massachusetts personnel records law says that if an employer adds negative information to a personnel record, the employee has to be notified within ten days.  Normally, employees can review their personnel files twice a year and after termination.  But adverse comments entitle them to an extra look. 

 A personnel record is anything that can be used “relative to the employee’s qualification for employment, promotion, transfer, or disciplinary action.”  What has to be disclosed is information that can “negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or the possibility that an employee will be subject to disciplinary action.”

 This is pretty broad, so to be safe, you should show the employee any evaluation or other written record that could possibly meet the definition and have them sign to acknowledge that they received it.