Employment and Labor Insider - Legalese Is Not Spoken Here

That is not a typo. Watch out for the "M" word if you don't want to be accused of harassment based on race, national origin, or color.

The "M" word is "monkey."

Now me, if I were to associate a human being with "monkey," it would be the white guy Joe E. Brown. And who can forget all the monkey-related grief poor, white George W. Bush got? However, the term "monkey" is included on Wikipedia's list of ethnic slurs, and it's not a slur against white guys. Some of you may remember the uproar in George Allen's senatorial campaign in Virginia in 2006 after he referred to a Democratic campaign worker as "macaca," a variation on macaque, that is reportedly used by European colonialists on the African continent to refer to native Africans. (The campaign worker Allen was referring to was actually Indian, and Allen denied that he intended his comment as a racial or ethnic slur. He has since publicly admitted that he should never have used the term.)

See what I mean?

And WAY back, the late sportscaster Howard Cosell got in trouble for saying "Look at that little monkey run" in reference to an African-American football player, Herb Mulkey of the Washington Redskins. Cosell, who was buddies with, among others, Muhammad Ali, denied that he meant the comment as a racial slur. He said that he called his own grandchildren "little monkeys," and according to a blog about Cosell, he also referred to white athletes as "little monkeys," including Glenn Hubbard of the Atlanta Braves and, before that, Mike Adamle of the Kansas City Chiefs.

Well, enough history. A federal judge in the Eastern District of New York decided last week that a  "non-white Hispanic" guy was entitled to a jury trial for hostile work environment harassment because his co-workers called him "monkey." 

If you read the decision, you will see that they called him "monkey" a lot. Too much. But, in the company's defense, please note:

1-There was no evidence of any anti-Hispanic slurs or prejudice in the work environment.

2-The company employed other Hispanic workers, and there was no evidence that any of them were called "monkey."

3-There was evidence that the co-workers started calling the plaintiff  -- and only the plaintiff -- "monkey" after the plaintiff referred to himself as a "silver-back gorilla" because he had gray hair.

4-At least one of the co-workers who called the plaintiff "monkey" was Hispanic himself.

5-All of the workers (this was a small moving company) had nicknames for each other, including one unfortunate guy who was called "Toilet Bowl." I'd rather be the most intelligent of the non-human primates than a potty, but maybe that's just me.

Is this picture inappropriate?

In my opinion, all of the above is pretty strong evidence (as in, summary judgment for the employer!) that the "monkey" name was not intended as an ethnic slur, even though it appears that the plaintiff viewed it as an ethnic/racial slur. 

The defense argued that the term was race-neutral unless it was used against African-Americans.  The judge said this was an "astonishing proposition." In this case, the plaintiff was allegedly very dark-skinned, and the judge said, "Like Latin America itself, the term [Hispanic] encompasses a wide range of races and ethnicities, and discrimination sometimes occurs within these groups."

Fair enough. But I still think there needed to be some evidence that he was called "monkey" because he was Hispanic, or because he had dark skin, and the burden is supposed to be on the plaintiff, not the defendant, to present enough evidence to create a genuine issue of material fact.

Unfortunately for this employer, I was not the judge. Because the real judge was merely denying the company's motion for summary judgment, the company cannot directly appeal the decision but will have to go through the expense and difficulty of a trial on the plaintiff's harassment claims.  (Or settle.) Only after the company loses at trial, if it does, can it appeal and argue that this harassment claim should never have gone to a jury in the first place.

Of course, it's always possible that a jury will feel the way I do and will find that there isn't enough evidence that the "monkey" comments were directed at the plaintiff's race, ethnicity, or color.

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There are at least three things employers can learn from this decision:

*Take it seriously whenever an employee complains about being offended by nicknames, teasing, etc., from co-workers, even if the teasing does not strike you as overtly "EEO"-related. In this case, the plaintiff complained repeatedly to the company's owner, who told him to "roll with the punches" and "just deal with it." If an employee is offended by teasing, then tell the other co-workers to back off. If it continues, discipline them. If they still don't get the message, you'll have to ramp up the discipline, and maybe even fire them. Please note that I'm not saying you have to outlaw all teasing -- but you should make sure that employees are respectful of each others' feelings to the extent that you can. This is important for avoiding harassment claims, and also -- assuming the legal cause of action catches on -- workplace bullying claims.

*Don't forget that "color" discrimination is just as illegal as race or national origin discrimination. If it looks like someone is being teased or harassed because of color, then you need to take that as seriously as you would a complaint about sexual harassment. Color cases are relatively rare, but they do occur. For example, light-skinned African-Americans might pick on a dark-skinned African-American, or vice versa. In this case, it sounded as if light-skinned Latinos may have been picking on the plaintiff because he was dark-skinned -- at least, that's the way the judge looked at it.

*"Roll with the punches," or "deal with it" are almost never good responses to complaints about bad treatment at work. 'Nuff said?

Have a great Labor Day! And next Thursday, September 6, at 3 p.m. Eastern, Stephanie Thomas of The Proactive Employer will be hosting a webcast featuring Jon Hyman, Phil Miles, Eric Meyer, and moi in a "Dear Abby" for employers with bizarre HR and legal questions. (Normal questions need not apply.) You can call, email, or tweet your bizarre questions, and we'll try to field them as best we can. It should be a blast -- please tune in!

Photo credits: Wikimedia Commons (public domain).

The American Bar Association is accepting votes for its 2012 ABA Blawg 100 list. Thanks to you, we made the list last year. Once again this year, if you are so inclined, and if you cast a vote for Employment & Labor Insider, we'd be eternally grateful.

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The U.S. Court of Appeals for the Eleventh Circuit* has held that employers may use "sticks" to encourage participation in wellness programs as well as "carrots," if the wellness program is part of a group health or other benefit plan.

*The 11th Circuit hears appeals from federal courts in the states of Florida, Georgia, and Alabama.

Let me back up and explain the issue a bit.

**NERD ALERT (but this is important!)**

As most readers know, the general rule under the Americans with Disabilities Act is that employers cannot make "medical inquiries" of current employees unless the inquiries are "job-related and consistent with business necessity." This means that an employer is normally not allowed to ask for medical information unless there is reason to believe that the employee's medical condition is affecting safety, performance, or behavior on the job.

If this rule were applied without exception, then any wellness program would violate the ADA, right? That is why the ADA has an exception pertaining to voluntary wellness programs. An employer is allowed to ask for medical information from employees -- even if the information is not "job-related and consistent with business necessity" -- if the information is obtained in connection with a voluntary wellness program.

The "voluntary" part of this is very important -- a "mandatory" wellness program would not qualify for the exception. Maybe.

A couple of times in the past, I have posted on wellness programs and the ADA, and expressed concern about employers who used "sticks" instead of "carrots" to encourage participation. Specifically, I discussed a program in which Broward County, Florida, charged its employees an extra $20 on each biweekly paycheck if they did not participate. (Actually, the county imposed the $20 charge only if the employees participated in the group health plan and not the wellness program. Employees who were participated in neither one were not penalized in any way.) The City of Chicago was also preparing to start a wellness program that required employees to pay $50 a month to opt out.

I was afraid that these programs might render the wellness programs "not voluntary," meaning that any information obtained from employees in connection with the programs would violate the ADA.

A Broward County employee named Bradley Seff had the same concern, and he filed a class action lawsuit against the county. While the lawsuit was pending, the county stopped imposing the charge.

A federal district court in Florida granted summary judgment to the employer, and yesterday a three-judge panel of the 11th Circuit affirmed. Both courts found that the county's program fell within a "safe harbor" in the ADA, which provides that a covered entity is not prohibited "from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law."

The decision is short on legal analysis, no doubt because there is virtually no case law on this issue. In addition, Mr. Seff's only ground for appeal was that district court should have given more weight to testimony by the county's acting benefits manager. The manager had testified that the wellness program was not a term of the county's benefit plan and that the wellness program was not a term of the county's health and pharmacy plans. The 11th Circuit held that this testimony was either an inadmissible legal conclusion, or a factual statement that did not preclude the possibility that the wellness program was nonetheless a part of the program.

The court said, "The parties do not cite, nor are we independently aware of, any authority suggesting that an employee wellness program must be explicitly identified in a benefit plan's written documents to qualify as a 'term' of the benefit plan within the meaning of the ADA's safe harbor position."

Therefore, because the wellness program

*was sponsored "as part of the contract to provide Broward with a group health plan,"

*"was only available to group plan employees," and

*was presented "as part of [the County's] group plan in at least two employee handouts,"

the court affirmed the district court's ruling that the program fell within the ADA's "safe harbor" provision. And because the program fell within the safe harbor, it was irrelevant whether the program was "voluntary" or whether medical inquiries made in connection with the program violated the ADA.

So, party on, wellness programs!

Photo credits: Wikimedia Commons (public domain).

This issue has been coming up a lot lately: What should an employer do when an employee claims that her co-workers' fragrances make her sick?

(I'm not being sexist here -- every time I've had it come up, it was a woman complaining about women's fragrances. For the record, men's fragrances can be annoying, too. When they're not completely irresistible.)

Allow me to specify what I mean by "sick." What I mean is ADA-disabled sick. The scent brings on attacks of asthma, or COPD, or whatever. In other words, more than an odor that the employee finds unpleasant or oppressive.

A recent case makes me glad that I have advised employers in this situation to take such complaints seriously. UPDATE (11/2/12): The employer in this case won summary judgment, but my recommendations below still stand.

And I've also learned that getting between a woman (person?) and her (his? their?) fragrance can be a dangerous thing.

I'll talk about some proposed solutions, but, first, let's look at the case. The plaintiff worked for a county social services department in Ohio. She claimed that the fragrance worn by some of her co-workers -- Japanese Cherry Blossom* -- aggravated her asthma and caused her to suffer from other unspecified chemical-induced allergies.

*Always on the lookout for my readers, I hereby helpfully link to Japanese Cherry Blossom, although I have not tried it out myself. According to the website Fragrantica, Japanese Cherry Blossom has "[t]op notes" of "plum, pear, and apple; middle notes are mimose, tuberose, lily, kyoto rose petals and japanese cherry blossom; base notes are sandalwood, amber, patchouli, cinnamon, himalayan cedar, musk, vanilla, and oakmoss." (Spelling and capitalizations in original.)

According to the plaintiff's lawsuit, she asked the county to ask her co-workers not to wear Japanese Cherry Blossom perfume. The county did nothing. The plaintiff had a bad reaction and had to go to the emergency room. Her co-workers then had a catty conversation about her on Facebook, and they refused to give up their Cherry Blossom. They probably started bathing in it, just to spite her.*

*My speculation. May not have actually happened.

The plaintiff then submitted a note from a nurse saying that the scent caused her asthma to flare up. The nurse acknowledged that the county could not ban clients or the general public from wearing Cherry Blossom perfume but said that having her co-workers avoid using it would at least minimize her exposure. The county, perhaps afraid of an employee mutiny, responded by "requesting" but not requiring that the co-workers stop wearing Cherry Blossom and directed the co-workers to avoid in-person contact with the plaintiff as much as possible. You can imagine what happened next. The co-workers probably started paying long, chatty visits to the plaintiff in her cubicle immediately after emptying magnums of Japanese Cherry Blossom on their heads and gargling with it.*

*My speculation. May not have actually happened.

Finally, the plaintiff asked to be allowed to telecommute, and her request was denied. The decision didn't make clear whether this was a job that lended itself to a telecommuting arrangement, but I doubt that it was. I assume the plaintiff would have had to meet in person with clients, which probably had to be done on-site.

Curious about the Affordable Care Act (aka "Obamacare") and how it will apply to you? Of course you are! Check out our sister blog, Employee Benefits Unplugged, for everything you need to know. The latest posts on the ACA are here, and here, and here.

Anyway, the plaintiff sued for disability discrimination under the ADA and the Ohio human rights statute, and the county filed a motion for judgment on the pleadings, which is a way to get a lawsuit dismissed based on the material in the initial court pleadings. The court denied the motion, which means the case will proceed. It's possible that the county will get the case dismissed later on at the summary judgment stage, or that the county will prevail at trial.

But what is noteworthy is that the court found that the plaintiff had at least stated a valid claim for disability discrimination based on the county's response to her request for accommodation. The court also said that the county might be required to adopt a fragrance-free policy, particularly given that the co-workers refused to give up their Cherry Blossom even after being asked nicely to do so.

In the fragrance situations I've been personally involved in, employers rightfully fear that the alleged "sensitivity" is bogus. I've also seen the perfume-wearers become angry and offended when asked to give it up, just like the co-workers in the Ohio case. In one situation I'm aware of, the perfume-wearer even claimed that she was being discriminated against. (I know. Don't ask.)

So, how do you deal with fragrance sensitivity without ticking off everybody else?

1. Clarify the issue. Does the employee simply dislike the scent, or is he or she contending that it causes genuine medical problems? If the former,  you're not legally required to take action, although you can as an employee relations matter -- it's up to you. If the latter, read on . . .

2. Get documentation. If the employee contends that fragrances cause medical problems, then insist on a doctor's note or other appropriate medical documentation. The documentation should tell you whether a specific scent is the problem, or whether it is a "family" of scents, or whether it is all scents. The medical provider should know what kind of work atmosphere is involved -- whether the employee with the sensitivity works in an office, a cubicle, an open area, or is on the road 99 percent of the time, as well as the level of contact that the employee has with people over whom the employer has no control (customers, patients, social services recipients, etc.). The medical provider should also, of course, make specific recommendations regarding possible accommodations.

3. Follow up. If the medical documentation doesn't contain all of the information you need (see No. 2, above), then don't be afraid to follow up with the employee and/or the medical provider until you get it.

4. Take action while you can still be "moderate" about it. Ward off the problem before you get a court order compelling you to adopt a 100 percent fragrance-free workplace. Do you have any idea what that really entails? Perfume, yes, but also shampoo. Conditioner. Soap. Deodorant. Hand lotion. Body lotion. (You can have my lavender-scented Aveeno Stress Relief Moisturizing Lotion* when you pry it out of my cold dead hand.) Shaving stuff. Toothpaste and mouthwash. Even some makeup.

*Not a paid product endorsement.

Fifth, avoid singling anybody out. As we've seen in the Ohio case and at least one other, folks get tetchy when you imply that they smell bad, especially when they've gone to the trouble of fighting the traffic and crowds at the mall and being condescended to by snooty beauty consultants in stiletto heels and lab coats and sampling hundreds of scents in the quest for their perfect "signature" fragrance at $150 an ounce. I went through hell, lost hours of my life that I'll never get back, and spent half a paycheck to smell like this. And now you're telling me I stink??? You stink!!!

Needless to say, you should avoid identifying the employee who made the complaint. But also, counter-intuitive as it may seem, it's much easier to issue a generic policy directive requiring that all employees refrain from wearing perfume or cologne, using scented candles or air fresheners, or using scented hand lotion, at work. If the rule applies to everybody, and no one employee or group of Japanese Cherry Blossom wearers are made to feel "stinky," you are much more likely to get compliance and avoid vindictive passive-aggressive reactions, which so often lead to lawsuits. And with early compliance, you may not ever have to adopt "extreme" solutions (see No. 4, above).

Photo credits: Wikimedia Commons (public domain).