"We're gonna regulate your tie morphology, and you can't stop us!"

Posted by Robin E. Shea on December 27, 2010

Swiss bank UBS has been the butt of some teasing for its strict, extremely precise, and sometimes incomprehensible employee dress code. Particularly puzzling is its requirement that men's neckties match "the morphology of the face." (I've done a good bit of internet surfing trying to find out exactly what this means, without much luck. A commenter at Evil HR Lady says it means that men with wide faces should have wide knots in their ties, and men with narrow faces narrow ones. Maybe so. Whatever.)

In any event, there is no question that UBS would have the right to do this, even in America. Employers are Questioning Man.19131826.jpggenerally free to establish dress and grooming standards that they consider appropriate, with a few exceptions. If a grooming standard tends to exclude individuals of a particular race, sex, nationality, or religion, the employer would have to show that the standard had a legitimate business justification.

For example, African-American men are more likely than Caucasian or Asian men to have a skin condition called pseudofolliculitis barbae. Close shaving aggravates the condition, and so African-American men have been successful suing employers who required male employees to be clean-shaven. However, where being clean-shaven was a safety issue (for example, with firefighters who need a good "seal" for oxygen masks), courts have upheld no-beard requirements.

It is also generally lawful for an employer to have dress and grooming requirements that are different for men and women, as long as the requirements are "equivalent." For example, an employer with a business-dress code can allow women to wear either pant- or skirt-suits while allowing men to wear only pant-suits, and requiring men, but not women, to wear neckties. As another example, an employer could require all employees to wear uniforms but have a "pant" uniform for men and a "skirt" uniform for women.

 On the other hand, it would be sex discrimination for an employer to allow, for example, men to wear "business casual" dress at work and require women to wear uniforms. The uniform indicates lower status, and so requiring only women to wear uniforms would be considered discriminatory.

Of course, if an employee is required by his or her religion to wear a certain type of clothing, such as a Muslim hijab (scarf), the employer would have to allow it unless there was a compelling reason -- for example, safety -- to prohibit it.

Absent evidence of discriminatory impact, then, there should be no problem with UBS's "morphology" requirement . . . if anyone ever figures out what it means.

Employment lawyer at the movies: What if "Miracle on 34th Street" happened today?

Posted by Robin E. Shea on December 16, 2010

One of my favorite Christmas movies is the 1947 version of Miracle on 34th Street, but ever since I became an employment lawyer, I have not been able to watch it without thinking about how different the story would be today.

For our readers who are not black-and-white movie buffs, here is a summary of the plot: A nice little old man named Kris Kringle (Edmund Gwenn) is strolling down the streets of Manhattan on Thanksgiving DayUsher eating popcorn.jpg, and encounters Macy's parade Santa Claus, who is tangled up in his whip. Kris tries to teach parade Santa how to crack the whip properly and quickly realizes that parade Santa is three sheets to the wind. Kris finds the parade organizer, personnel manager Doris, a divorced "career gal" played by the lovely Maureen O'Hara, and indignantly tells her. Desperate to get a replacement Santa before the parade starts, she asks Kris to substitute. Kris does, and is a huge hit, and he's hired to be Macy's department store Santa for the Christmas shopping season.

After Kris starts work, the manager of the Toy Department tells him to promote gifts that are available at Macy's (especially the ones that aren't selling well), even if the kids want something else. Kris resists this commercialism, and actually encourages the children's mothers to go to competitor Gimbel's to get the toys they want. Doris and the toy manager are terrified that Mr. Macy will fire them for having hired Kris.

Meanwhile, Doris has reviewed Kris's employment application, and sees that he thinks he really IS Santa Claus. Although his address is a nursing home in Long Island, he says he is from the North Pole, and he lists eight reindeer as his next of kin. Doris makes up a story about last year's Santa having unexpectedly returned, and she fires Kris.

Soon, Doris and the toy manager are summoned to the office of Mr. R.H. Macy. Fully expecting to be fired themselves, they are astounded to hear that Mr. Macy is delighted with the kinder, gentler image of Macy's and plans to put it into place at the Macy's stores in other cities. He promises bonuses to them both, "and tell that Santa Claus I won't forget him, either."

Doris manages to catch Kris before he leaves Macy's for good, but because he seems delusional, she decides to send him to Mr. Sawyer, the store psychological tester, for an evaluation to ensure that Kris is not dangerous. Kris continually outwits Mr. Sawyer in the testing, and so the evil Mr. Sawyer vindictively reports that Kris is a potential menace. At the same time, the head of the nursing home where Kris lives is telling Doris that Kris is completely harmless and "has a delusion for good." Based on his opinion, as well as Mr. Macy's, Doris allows Kris to stay on.

Kris makes friends with Alfred, a chubby teen-ager who works as a janitor and who enjoys dressing up as Santa Claus for the poor kids at the Y because he can wear the costume without padding "on account of I got some extra padding myself." One day, Alfred seems depressed, and Kris asks him what is wrong. Alfred says that he's been meeting with Mr. Sawyer, who told him that he had a "complex" and hated his father. Kris, irate that Mr. Sawyer would provide psychotherapy and make Alfred feel that there was something wrong with him for wanting to help poor kids, storms into Mr. Sawyer's office and raps him on the head with his cane. Mr. Sawyer is not badly hurt, but he pretends to be unconscious, and then he tells Doris that she must commit Kris to a mental hospital. Doris reluctantly agrees, but without her knowledge Kris is tricked into getting into a taxi that takes him to Bellevue. In the cab, Mr. Sawyer falsely tells Kris that Doris knew all about it. Depressed because he thinks Doris was in on the scam, Kris purposely fails the psychological tests given to him and is committed.

The rest of the movie consists of Doris's love interest, handsome attorney Fred Gaily (John Payne), initiating court proceedings to get Kris out of the mental hospital by proving that Kris really is Santa Claus and therefore not delusional. Mr. Macy, who commits perjury testifies under oath that he believes Kris is the real Santa Claus, fires Mr. Sawyer on his way out of the courtroom. Meanwhile, Kris is trying to convince the jaded Doris and her unimaginative daughter, Susan (played by young Natalie Wood) to believe in him . . . and in love. I won't say anything more because I don't want to spoil the ending if you haven't seen it.

So, that was 1947. How would this story work today?

1-Parade Santa would be sent to an employee assistance program. Then he would return at the end of his 12-week job-protected leave under the Family and Medical Leave Act and would be entitled to bump Kris out of his job. Macy's would have to allow him time off work periodically to attend Alcoholics Anonymous meetings as a reasonable accommodation under the Americans with Disabilities Act. (He'd be entitled to FMLA leave for the AA meetings, too.) Even though parade Santa would be entitled to restoration to a "substantially equivalent position" after his FMLA leave, Macy's can claim that no such position is available for a Santa Claus in February, so they make him a file clerk until their "Christmas in July" promotion.

2-After being fired by Doris, Kris would go straight to the Equal Employment Opportunity Commission and file a disability discrimination charge, contending that he either had an actual psychological disability or was "regarded as" having one. Just to make sure he'd covered all the bases, Kris would add a claim for age discrimination since he's "a little older than [his] teeth" and reverse sex discrimination since the person who terminated him was a woman.

3-Kris would also retain a personal injury lawyer who would tell him that he has a wrongful termination claim as well because he was fired (in part) for refusing to push unwanted goods on innocent little children who believed that he was Santa Claus. Surely this is an unfair and deceptive trade practice, and a violation of some public policy!

4-On the other hand, Doris is to be commended for promptly reinstating Kris before incurring significant back-pay liability. Mr. Macy should give her a bonus.

5-The test administered to Kris by Mr. Sawyer was a "medical examination" within the meaning of the ADA and could not be given to him after he started work unless it was "job-related and consistent with business necessity." But since Kris was coming back after having been fired, Doris might be able to claim that it was a lawful post-offer, pre-employment medical examination. In light of the new Genetic Information Non-Discrimination Act, let us hope that Mr. Sawyer did not ask Kris about his family history.

6-It is unclear whether the "psychoanalysis" that Mr. Sawyer provided to Alfred was part of a voluntary wellness program, and therefore permissible under the ADA. If not, then Alfred could also file an ADA charge against Macy's for conducting an unlawful medical examination, as well as a workers' compensation claim for his depression.

7-Mr. Sawyer would file another workers' compensation claim against Macy's for his injuries suffered when Kris hit him with the cane. Macy's would send Mr. Sawyer for an independent medical evalution, which would say he was engaging in "symptom magnification." Macy's would also hire a private detective to conduct video surveillance of Mr. Sawyer's activities. Armed with this evidence, Macy's would be able to get a clincher agreement at mediation for "only" a few thousand dollars. Because Macy's had no workplace violence policy in place, its workers' compensation premiums would quadruple in 1948.  

8-Meanwhile, Kris now has another "regarded as" ADA claim to add to his long list, after being tricked into going to the mental hospital. Even though Doris really did not know what Mr. Sawyer was doing, Mr. Sawyer acted with apparent authority, making Macy's liable for his actions. 

9-Mr. Sawyer will sue Macy's for wrongful discharge and intentional infliction of emotional distress based on his termination. First, he will say he was terminated for trying to prevent workplace violence, and surely that is a violation of some public policy! Second, it was unnecessarily humiliating -- or should we say, "extreme and outrageous" -- for Mr. Macy to have terminated him in the courtroom, in front of all those people. Even worse, it was right before Christmas, and we know what the Supreme Court says about adverse employment action right before Christmas.

10-Kris, Doris, and the toy department manager will sue Macy's under the Fair Labor Standards Act for failing to include their bonuses in the calculation of their regular rates. Since Doris and the toy manager are managers for whom  the "regular rate" calculation would not apply, they'll claim that they were misclassified and are actually non-exempt. On the advice of their attorney, they will file their suit "on behalf of themselves and all others similarly-situated."

I could go on all day! Please add to my list.

 

REASON FLAILS: Bosses behaving badly (allegedly)

Posted by Robin E. Shea on December 03, 2010

A couple of recently reported decisions -- one involving pregnancy discrimination, and the other involving state-law tort claims -- indicate that some employers may need to get their acts together. Of course, the decisions were issued at preliminary stages of the litigation, so let us hope that these bosses aren't really as bad as their employees have made them sound.

Scared jpg"Women and children last!" A federal court in Alabama allowed a pregnancy discrimination suit to proceed to a jury trial. According to the plaintiff's evidence, she suffered a miscarriage after eight weeks of pregnancy, and when she returned to work, her superiors said that they hoped she would not "abuse" her sick leave. Then, when she got pregnant again, her manager allegedly said that even if they had to pay her for maternity leave, "she sure as hell wouldn't have a job when she came back." The court said that these alleged statements, as well as others, created a genuine issue of material fact that the plaintiff was discriminated against because of her pregnancy. Gee, ya think?

"Waterboarding isn't torture -- it's a motivational exercise." The Utah Supreme Court gave the go-ahead to a lawsuit asserting tort claims, including assault and battery and intentional infliction of emotional distress, by an employee who alleged that his boss waterboarded him as a "motivational exercise." After the waterboarding, the boss allegedly told co-workers that they should work as hard at making sales as the plaintiff was working at trying to breathe. This same boss also allegedly used to draw mustaches with permanent marker on the faces of sales representatives who were not meeting goals, and striking their desks with a wooden paddle. Ironically (or not), the employer is a business coaching company.

Bad week. Is there something in the water?