Employment Law Update

EMPLOYMENT LAW ALERT

Disability did not have to be the "sole cause" of an adverse employment action in order for a Plaintiff to recover. In a recent decision (McNealy v. Ocala Star-Banner Corp.), the U. S. Court of Appeals for the 11 th Circuit, whose jurisdiction includes Florida, held that under the Americans With Disabilities Act it is improper to only impose liability against an employer when the disability is the sole basis for an adverse action taken against an employee. The Court reasoned that to allow this standard would improperly tolerate discrimination as long as the employerâs action against the employee was based "if ever so slightly" on at least one other factor.

Practical Implication. Be sure that you have a legitimate and well-documented business reason when an employee who is subject to coverage under the ADA is terminated.

Sexual Harassment Policy will not always protect an employer from liability. A female supermarket employee was repeatedly sexually harassed by a male co-employee. The harassment included grabbing the female employeeâs breasts. The victim reported each incident to the store manager, but the manager mechanically told the employee that the companyâs policy required her to report the incident to the Human Resources Department. The employee never reported the behavior. The Eighth Circuit Court of Appeals held that this failure to follow exactly the companyâs harassment policy does not prevent liability against the employer because the employer had actual notice of the harassment and failed to take immediate remedial action (Vaner v. National Supermarkets).

Practical Implication. All supervisory and management personnel of an employer should be trained with regard to sexual harassment and told to immediately follow up on complaints of harassment, even if the official policy is for the employee to contact another supervisor or department concerning the alleged harassment.

Few contemporary issues in the American workplace are more sensitive and controversial than an employerâs requirement that employees only speak English in the workplace. If there is any doubt as to the emotional reaction that language as an indicator of cultural identity can evoke, one need only look to the north, and recall the various separatist movements which have occurred in recent years in Quebec. These separatist movements have, at times, threatened to tear the nation of Canada apart. Much of the emotional context of these movements has been language-based.

Closer to home, the U.S. District Court for the Southern District of Florida has recently addressed the issue of an employer requiring that employees speak only English. In Prado v. L. Luria & Son, Inc. (Luriaâs), decided in April of this year, the court held that "an English-only rule by an employer does not violate Title VII [of the Civil Rights Act] as applied to bilingual employees as long as there is a legitimate business reason for the rule."

In the Prado case, the plaintiff was employed initially by Luriaâs in Dade County as a cashier from 1987 to 1990. In that period of time she was offered, but declined, a promotion to head bookkeeper.

Early in 1990, Prado left Luriaâs for another job that paid a higher salary. However, after one year on this job, she sought re-employment at Luriaâs. There was no immediate opening at the company, but she was re-hired as an assistant bookkeeper when the first job became available in October 1992. She was later promoted to customer service manager. She worked at three different store locations in Dade County.

Prado Claimed that while employed at two of the separate business locations of Luriaâs in Dade County, she was subjected to harassment because of her accent and that at one location the store manager said there were "too many Spanish-speaking people" in the Coral Gables area, where the store was located.

In November of 1994, Prado quit Luriaâs, alleging that she was forced to leave (constructively discharged) because of Luriaâs strict enforcement of an English-only policy. In addition to filing a charge of discrimination, she took her complaints about the store to a Spanish language radio station in the area. In granting summary judgment for the store, the court noted that Luriaâs set forth two business reasons for enforcement of an English-only policy which the court found to be legitimate (1) to facilitate the practice of approaching customers first in English and (2) to ensure that management understands what is being said in order to evaluate employees in all work-related communications. The store also indicated that insistence on compliance with the policy was in response to customer complaints about employees speaking Spanish in the workplace.

In finding that the storeâs policy did not constitute unlawful national origin discrimination, the court rejected the EEOCâs policy that an English-only rule in the workplace will be presumed to violate Title VII and will be closely scrutinized. The court found that the plaintiff in this case sought to speak Spanish in the workplace as a matter of preference and that this preference was overcome by the legitimate business reasons asserted by the employer. The court concluded:

Generally, an employer may adopt or maintain any work-site policy governing employees which has as its principal purpose a furthering of the employerâs legitimate business interest so long as the policy does not infringe on individual rights, is not detrimental to the health or safety of the employees and, on balance, does not create an unfair advantage or disadvantage to any discrete group. More Particularly, an English-only workplace rule adopted with a principal purpose of providing for effective supervision and evaluation of employees furthers a legitimate business interest without violating protected rights.

The court then went on to observe what it termed "another practical justification" for a policy which prohibits the use of a foreign language in the workplace:

An insistence that employees speak English in the workplace serves the added business purpose of minimizing the sense of alienation and resulting hostility felt by employees and customers who donât speak or understand the foreign language.

The courtâs conclusion in the Prado case appears to provide latitude to an employer to establish and English-only policy in the workplace as long as the policy furthers the employerâs "legitimate business interest(s)." This term obviously is subject to interpretation. Also, if a valid "business purpose" of an English-only policy is to minimize "alienation" and "hostility" of employees who do not speak the foreign language, virtually every employer of any substantial size could conceivably argue that employees or customers have complained that when employees speak Spanish (or another foreign language), they feel excluded because they do not know whether the employees are talking about them in a negative manner and are further offended by their inability to understand what these employees are saying.

Certainly it is legitimate to believe that non-bilingual employees feel alienated and perhaps hostile to employees who in their presence speak another language which they do not understand. On the other hand, employees who are more comfortable with a language other than English may well feel they are being "singled out" for special discipline simply because of their national origin.

In view of the Prado decision, what should an employer who desires to implement an English-only workplace policy do? First of all, the employer, while recognizing that the workplace is not and cannot be a democracy, should be sensitive to the varying life experiences and perceptions that are brought into the workplace by employees with diverse backgrounds and experiences. Because of this, the employer should take the time to communicate effectively with all employees in its workplace to ensure that an English-only policy is fully explained to the employees. All employees may not agree with the business reasons asserted by the employer, but at least they will recognize that the employer believes there is a business reason for the policy, and it is not being imposed simply to discriminate against of offend any group of employees.

More specifically, an employer should first establish that there is in fact a substantial business necessity for the policy. Certainly customer complaints would seem to establish such a business reason. The employer should explain that this expressed dissatisfaction by its customers may drive away existing and future business and therefore jeopardize the jobs of all employees.

An employer should also emphasize to its employees that this policy applies to all languages other than English, and not just Spanish or any other particular language. The employer should also emphasize that it is not in any way trying to dictate a language of preference to any employee and that all employees are free to communicate with each other and with others outside of the workplace, including the lunchroom, during breaks, or obviously before or after work, in any language the employees prefer. The employer should further emphasize most of its customers and supervisors speak English and that is why that language has been selected.

It is also important for the employer to affirmatively state, at the time of the implementation of the English-only policy, that the employer is happy to have a diverse workplace which represents a cross-section of the community and believes that this diversity enhances the workplace environment by exposing it to cultural and ethnic diversity. However, despite the diversity, for effective communication, one language needs to be chosen and the language selected has been English because that is the language that most, if not all, employees, supervisors, and customers speak. It is also recommended that the employer emphasize that if any employee wants to speak with management separately regarding this matter, the employer would be happy to meet and discuss the policy further.

The point is this: An English-only policy will be highly controversial, no matter how it is explained. If it is implemented by simply posting a memorandum on a bulletin board without explanation, the reaction of some employees is likely to be extremely negative and they may feel personally offended by the policy. Some employees may well feel they are being discriminated against because they were not born in this country. As immigration patterns have shifted in the United States from central and western Europe in the early part of the century to Central and South America today, the emotional issue of language may well be tied to perceptions of national origin discrimination by employees.

However, an English-only policy implemented with sensitivity by an employer willing to take the time to communicate the policy effectively to its employees minimizes the possibility that this misperception will occur. America is a country built upon diversity and, except for Native Americans, all of us or our ancestors came from somewhere else. The father of our country, George Washington, was not born in America, nor was the father of the author of this article. That fact does not make anyone a second-class citizen and the employer who takes the time to effectively communicate a lack of discriminatory intent or purpose to its employees maximizes its chances of avoiding costly, divisive charges of discrimination and litigation over an English-only policy.

It is sometimes difficult to see things from another personâs point of view; to do so, however, is a clear indication of maturity. Employers and individuals who can recognize and effectively react to the perceptions of others will inevitably avoid unnecessary conflicts in the workplace, or elsewhere in life.

VIEWPOINT

In a recent decision, the 11 th Circuit Court of Appeals (which includes Florida) upheld the decision of the Georgia Attorney General to withdraw a job offer to a female attorney because the Attorney General became aware that she was a lesbian and involved in a long-term relationship with (i.e., "married to") another woman. The Court reasoned that employment of a lesbian in such a context could "negatively impact" the publicâs perception of and confidence in the Attorney Generalâs office.

When the employer is the government, and the government makes decisions that affect an individualâs economic well-being, it may be argued that the government-employer should not intrude into an individualâs privacy and freedom of association rights to make these decisions. To do so could have a "chilling effect" on freedoms guaranteed to all of us by our constitution.

An employer should start any meeting with the complaining individual employee or purported victim of sexual harassment by explaining the objective of the meeting. All efforts must be made to make the employee comfortable. We recommend employers focus on the fact that this investigation is intended to look into the allegations that have been made. The employer should not promise confidentiality to the purported victim and explain why it cannot be confidential. Should this complaint turn into a lawsuit, records of the internal investigation may become the keys to winning the action.

The real purpose of the first interview is to obtain details. Consider asking the complainant to write down, either before or at the start of the interview, all incidents of improper conduct and all facts and witnesses which establish that they occurred. Obtain a complete list of each act and each statement that the individual construed as sexually harassive, offensive or constituting a hostile environment. Once each act has been disclosed, obtain more details. For each act and for each statement, determine:

• When did it occur?

• Where did it occur?

• Who was present when it happened?

• Exactly what happened, or exactly what was said?

• What conversation occurred with the harasser before the incident occurred or what statement was made?

• What was the response of the complainant when the act was occurring or the statement was being made?

• What was the response when the act or statement was concluded?

• What was said the next time the complainant saw the harasser?

• Did the complainant ever indicate that he/she was offended or somehow displeased by the act or statement?

• When did the complainant indicate his/her displeasure?

• Did the complainant ever specifically ask the harasser to stop?

• If not, why not?

• Did the complainant ever specifically say that he/she found the conduct to be offensive or to constitute sexual harassment?

• What did the complainant do to show his/her displeasure?

• What was the harasserâs response to the complainantâs act or statement?

• Did the complainant speak with anyone else about the offensive behavior or statement?

• With whom did the complainant speak?

• When did this conversation take place?

• What did the complainant and he/she say?

• Did the complainant ever make any notes or record of the incident?

• Did the complainant tape record it?

• What do the complainantâs notes or recordings say?

• Where is a copy?

• Will the complainant give it to the employer?

• Was the complainant able to continue with normal activities afterwards?

• Did the complainant ever seek medical treatment or counseling?

• Also ask questions regarding the internal processes of the company, including:

• When did the complainant learn of the companyâs sexual harassment policy and complaint procedure?

• To whom did the complainant first report the offensive incident or statement? [And if complainant waited, ask why.]

• What action does the complainant want the company to take?

• Why this particular action?

• Does the complainant believe he/she can work with the harasser? If so, is there anything that can be done to help the complainant in resuming a positive working relationship? If not, why not?

Review important points before concluding the interview, including a review of all notes that have been taken. It may also be helpful to follow up the interview with a written declaration setting forth the information that was provided. A document signed by the complainant can be helpful in ensuing a thorough investigation, discrediting later inconsistent claims and in responding to subsequent legal claims.

The EEOC recently issued a written guidance explaining what, in the agencyâs view, constitutes a protected psychiatric disability under the ADA and what types of accommodations will meet the ADAâs requirements. The EEOC states in the guidance that reasonable accommodations for psychiatric disabilities must be determined on a case-by-case basis. Possible accommodations (according to the EEOC) include modifying an employeeâs job schedule, adjusting "supervisory methods," providing a "job coach" or making physical changes to the work place, i.e., room dividers and (we are not making this up) allowing employees with difficulty concentrating to wear headphones.

Not surprisingly, this guidance has been heavily criticized by employersâ groups and others; however, employers should be aware that the EEOC may require some rather bizarre accommodations in these cases. The courts may well take a different view. Consultation with counsel is strongly suggested when a psychiatric disability arises.

William P. Burns has been practicing labor and employment law in the South Florida area for 23 years. He is a frequent lecturer on labor and employment issues to employer groups and others.

If you wish to receive additional information regarding any of the subjects contained herein, please contact one of our attorneys. Readers are free to reproduce articles in this newsletter, however, we ask that credit be given to Broad and Cassel and a copy sent to the Editor.

If you have any questions, please contact any of the following attorneys or your attorney at Broad and Cassel:

At the Miami Office:

(305) 373-9400
Frank H. Henry

At the Orlando Office:

(407) 839-4200
Jack R. Elliott, P.A.
Alan M. Gerlach

At the West Palm Beach Office:

(561) 832-3300
William P. Burns
Patricia Lebow, P.A.
Clifford I. Hertz, P.A.