Employment and Labor Insider - Legalese Is Not Spoken Here

I am sure you have all heard by now about the $8.7+ million award against The Price Is Right in a pregnancy discrimination lawsuit filed by one of the show's models, Brandi Cochran. A summary of the lawsuit appears after the jump.

As I've previously reported, pregnancy discrimination is one of those hot issues for the U.S. Equal Employment Opportunity Commission. TPIR may really discriminate against pregnant models -- I don't know. I think it's a sticky issue where you have employees whose entire stock in trade is their looks. But the case still has good lessons for employers on how to deal with pregnancy. By following a few simple rules of etiquette, an employer is unlikely to ever get a pregnancy discrimination claim, and the ones it does get will probably be dismissed quickly. Here they are:

1. Pregnancy is always good news. Always, always, always. No matter what her occupation, no matter how much it will inconvenience you to have her take 6-12 weeks off for maternity leave, no matter what her marital or relationship status, no matter how many kids she already has versus how many you think is an appropriate and tasteful number. By the time she tells you, her boss, about it, you can be sure it is good news to her and must be treated by you as such. Twins are doubly good news. Triplets are triply good news. And so on and so forth. The more babies, the better. No matter what you really think.

2. All right, one little exception. If you can't trust me on No. 1, then you may gently ask her upon hearing the news, "Is that okay with you?" When she answers yes, then go back to No. 1. In the highly unlikely event that she tells you no, be kind and sympathetic, and assure her that everything will be just great and that she will feel so much better when her little bundle arrives. Do not under any circumstances say -- or even agree with her if she says -- that getting pregnant was stupid, that she will look like a whale in a few months, or that things at work really would be a lot easier if she had stayed childless or stayed put with the kids she already had.

3. Never suggest that she has "other options," much less ask her to pursue them. Yes, there are pregnancy discrimination cases where employers allegedly did this. Astounding! On the other hand, at least one employer has gotten in trouble for counseling against "options" and then terminating the employee after she "exercised" them. That, too, was a form of pregnancy discrimination, the court said.

4. Don't ever tease her about being big. I know you don't mean anything by it, and you probably think she looks cute with that basketball under her shirt, but she will not take it that way. This is especially true if, like Ms. Cochran, her career is all about having the figure of a Barbie doll. The only things you are allowed to say about her looks is that she is "beautiful" or "radiant." (Note to men -- beware of sexual harassment if you're too positive about her appearance.)

"Barbie, you are looking especially radiant today!"

5. Don't pat her on the belly unless you are a member of her immediate family. That is an invasion of her personal space. (Also, the baby's.)

6. A miscarriage is always a tragedy. A stillborn birth is even worse. Like, at least 1,000 times worse. Don't ever say it's "for the best" or anything else to that effect. Even if she shared with you that she didn't want to be pregnant in the first place. The only permissible response is "I am so very, very sorry. What can I do?" Flowers sent to her home and a handwritten note of sympathy would also be appreciated.

7. You are always delighted to have her back at work when she returns. In her same job, with the same pay and perks and opportunities for advancement that she had before, plus lactation accommodation if needed. If you discovered while she was on maternity leave that she was stealing from petty cash and had not done a lick of work in six months, then you may qualify for an exception to this rule, but consult in advance with your employment counsel to make sure you are on solid legal ground.

8. Needless to say, the baby is always adorable*. The only babies cuter than hers were your own when they were that age, but of course you are biased.

*I have no trouble with this because I sincerely do think babies are adorable. But not everyone feels that way.

So CUTE!!!

9. If your organization is affiliated with a religion or denomination that considers the pregnancy to be evidence of immoral behavior (usually because out of wedlock), you may or may not be able to take action against her, but make sure you are equally tough on similarly situated men. (And please note that guys do not have to be pregnant to be "similarly situated." They are similarly situated if they you-know-what outside of the bonds of Holy Matrimony.)

10. Of course she is welcome to bring the baby to work, as long as the work environment would be safe and the baby would not disrupt her work or the work of others. She's also welcome to have a flexible schedule or to telecommute, if the job lends itself to that and she's been a reliable employee.

Read on for a recap of the TPIR lawsuit . . .

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In tough economic times, harassment training tends to be viewed as a luxury that can be gone without until things get better.

I understand this thinking, but harassment training on a regular basis is never a "luxury." It's a "cost of doing business." That is the reality. Here are five reasons why:

"Don't be 'cheep' about your harassment training. (tehe - get it?)"

*Turnover. If it's been, say, five years since you last had harassment training, that means you have a whole bunch of employees who have never had it -- at least, not with your company. If you don't offer harassment training on a regular basis, how are you going to prove that your newer employees knew what behavior to avoid, or what to do if they were victimized? ANSWER: You won't.

"Eating cake is a luxury, mon cherie, but not le harassment training!"

*Evolving law and social conditions. There have not been radical changes in harassment law for a long time, but there has been evolution that makes a program only a few years old seem naive and even quaint. Looking back at my older programs, they were very focused on "traditional" scenarios involving straight men and women telling dirty jokes and having extramarital affairs that went wrong, like General Petraeus and Paula Broadwell.

Now, the courts nationwide have recognized certain types of same-sex harassment as a form of "gender stereotyping" that violates Title VII, and many states have laws prohibiting "LGBT" discrimination, so we spend a lot more time on that subject than we used to. We also place more emphasis now on harassment based on race, national origin, religion, age, and disability. Over the years, the EEOC has placed increasing emphasis on retaliation, so we spend a lot of time on that. We talk more about the emerging issue of "bullying" now. Not to mention misuse of the internet and social media, which we were barely even thinking about a few years ago.

All of which means, if you have had a long hiatus from harassment training, your training will not be current, and you could be at risk for claims based on newer, "hipper," more modern forms of harassment.

"Thousands of pairs of shoes? Extravagant. Annual harassment training? Priceless."

*People forget. Even if you had bang-up, Cadillac Escalade-level harassment training three years ago, I can guarantee that everyone who was in that class has forgotten something important. You know it's true. And I'm talking only about the people who attended the training, of course -- the newer hires haven't heard anything that they can forget.

*It may be legally required, depending on where you live. Some states, including California, require employers to provide harassment training to management. If you're in one of these states, you cannot postpone training. It's the law.

Please take a minute and visit Eric Meyer's The Employer Handbook, which was host this week to the November edition of the Employment Law Blog Carnival. My post from last week about Obama 2.0 is featured there, as well as some great stuff from other employment law and HR bloggers. Thank you, Eric!

*It's expensive . . . until you get sued, and then in hindsight it was a steal. Yes, any harassment training costs money. You may think you don't have the money to spare, and I am sure you are right. But the legal fees to defend an EEOC charge will almost always exceed the cost of the training, and if you get a lawsuit, they will definitely exceed it big-time. Legal fees to get to summary judgment may run you about $50,000 or more, depending on where you live and the complexity of the case. If you don't get summary judgment and have to go to trial, your attorneys' fees may be more like $100,000, not including the plaintiff's attorneys' fees, which she is entitled to recover if she wins. And, of course, not including her award if she wins, which you will have to pay. And, as Chrysler found out, could be substantial.

"It may be a sin to have gold-plated plumbing in your bathroom *sob* and an air-conditioned dog mansion *sob*, but it's no sin to be current on your harassment training!"

Four-point-five million dollars? That harassment training just got real cheap, didn't it?

Seriously! One of the first things you'll be asked by the EEOC or a plaintiff's attorney is how recently you conducted harassment training and whether the parties involved in the case (the alleged victim, the accused, and any witnesses, as well as the people who investigated) attended. If you can say, "Oh, yes, we had training just six months before this all came about, and here are the attendance sheets showing that everyone completed the training," then that is good. In fact, that may provide you with a complete defense to the harassment claim. Wouldn't that be nice?

But sometimes what happens is that the rank-and-file employees testify truthfully that they don't even know what "harassment" is, and the managers "don't recall" the last time they had training because it was, in fact, last conducted before they were born.

Interested in seeing a sample of an interactive, computer-based harassment training program? Here is a "Petraeus-like" segment from a program that my law firm offers.

The cost of harassment training should never be an obstacle to an employer. Many law firms (including my own) and Human Resources consultants and employers' associations will do harassment training on a flat-fee basis so that you can plan for the expense with no surprises. You may have in-house counsel who is capable of doing the training, and if so, even better -- in that event, you don't have to pay anything extra for the training. If your turnover is too high to make "live" training practical, or if your employees are scattered to the four winds so that bringing them to a single location for live training isn't practical, you can go with a computer-based interactive program, a video-workbook combination, or even just a passive videotape (not as good because it isn't interactive, but definitely better than nothing). You can use some combination of these -- for example, by having live training once a year for management, and computer or video training for new-employee orientations in the interim. The possibilities are endless!

PLEASE NOTE: Having regular, current, high-quality harassment training is not a guarantee that you won't get a harassment charge or lawsuit, and it's certainly no guarantee that you will win. But our experience has been that employers who keep up with their training achieve a real benefit from it because employees are encouraged to speak up early, which allows the company to resolve the complaint internally before irreparable damage occurs. And courts have recognized effective training as an element of an employer's defense to some types of harassment cases.

Robert Burton and Benjamin Franklin approved this message!

FYI, next week, in honor of Thanksgiving, my "Friday" post will be up on Wednesday.

Photo credits: Wikimedia Commons. Painting of Marie Antoinette is by Jean-Baptiste Gautier Dagoty (1775).

In August, I posted about a court decision under the Americans with Disabilities Act involving a county social services employee who had an alleged sensitivity to Bath and Body Works's Japanese Cherry Blossom scent. I noted that the court decision, which allowed the case to go forward, was based only on the allegations in the plaintiff's lawsuit and the initial response of the county, and I said that it was possible that the county would get summary judgment at some time in the future.

Legal mumbo jumbo alert: In a motion to dismiss or motion for judgment on the pleadings, the court considers only the papers filed with the court and assumes that everything the plaintiff says is true. If the plaintiff has alleged enough to claim a violation of the law, then the case goes forward. At the summary judgment stage, which usually occurs later, the court actually considers evidence submitted by both parties, so it's harder for plaintiffs to win.

Well, I am happy to announce that the county just won summary judgment, meaning that the case is over subject to the plaintiff's right to appeal.

"Eeeek! Don't you dare come near me with those Japanese cherry blossoms!"

Some interesting points from the court's latest decision:

*Contrast between the "old" ADA and the "new" ADA (aka the "ADAAA"). This plaintiff's allegations spanned a period of a couple of years, and some of her allegations were from before 2009, when the "old" ADA was in effect. Other allegations were from after January 1, 2009, when the more liberal ADAAA was in effect. The court found that the plaintiff, whose only alleged problem was asthma triggered by Japanese Cherry Blossom perfume -- and apparently only when worn by her co-workers but not by anyone else -- I know! -- was not a disability under the old ADA. That knocked out at least one year's worth of "issues."

On the other hand, the court avoided making any finding as to whether she had a disability under the  ADAAA. This should be a warning to employers that these "fragrance sensitivities" really can be considered "disabilities" under the version of the ADA that is now in effect. Therefore, they need to be taken seriously. In essence, the court found that the ADAAA "disability" question was moot because the county had tried to make reasonable accommodations anyway (another good lesson for employers) and also that the plaintiff had been unreasonable.

*How-to on reasonable accommodation. The court was complimentary of the county's attempts to make reasonable accommodations to the plaintiff's sensitivity, noting that it offered to ask co-workers to refrain from wearing Japanese Cherry Blossom, tried to consult with the plaintiff's health care provider, offered the plaintiff more-frequent breaks, and made all kinds of other offers to help her out. According to the court, the plaintiff was essentially uncooperative and insisted on two "unreasonable" accommodations (discussed in the next bullet) or nothing. The court found that the county had engaged in the interactive process and had met all of its legal obligations to try to accommodate her.

The Bates Motel: an example of an unreasonable accommodation.

*How-not-to on reasonable accommodation. Under both versions of the ADA, an employee who fails to cooperate in the reasonable accommodation process or refuses a reasonable accommodation loses the protection of the Act. The two accommodations the plaintiff insisted upon were (1) a 100 percent fragrance-free workplace (see my prior post on what a radical thing this would really be), and (2) being allowed to telecommute. The court found that neither of these accommodations was reasonable and therefore that the county did not have to make them.

On the 100 percent fragrance free workplace, the court recognized that this was a very drastic measure (in fact, it was almost as if the judge had read my August blog post!) and in any event that there was no evidence that the plaintiff had a serious problem with any fragrance other than Bath and Body Works' Japanese Cherry Blossom perfume. (She did allege that she got headaches and congestion from other scents, but not asthma.)

So, the court essentially said in so many words, why ban Irish Spring soap, lemon/lime scented shaving cream, lavender-scented Aveeno hand lotion, Axe body spray, and the millions of other products with "scents" that people use every day? And, if she's really that sensitive (which she never claimed to be), would the employer also have to ban clients who'd had a smoke before coming inside the building or employees from microwaving their lunches, or would it have to rip out the coffee machine? After all, cigarettes, food, and coffee smell, too. (They smell good, but maybe that's just me.)

When are they going to invent a perfume that smells like bacon? The world awaits!

But let me get to the accommodation that you're really wondering about -- telecommuting. There is no question that telecommuting can be a reasonable accommodation if the job lends itself to that. But this lady was a social worker for a county "job and family services" office. You know, one of those places where people go to apply for government help. People with limited transportation options, who probably have to take the city bus, which may not even come to the plaintiff's neighborhood. And her job duties included meeting with them in person, and helping them get through the system. The court correctly said there is no flippin' way* this type of job could be done from home.

*My paraphrase. May not actually be in court's opinion.

Meanwhile, the plaintiff either refused or failed to respond to offers of reasonable accommodation from the county. So she essentially lost her protection under the ADA, and her employer won the case.

So that's the end of the Japanese Cherry Blossom story, for now. We'll continue to keep you up to date on all Japanese-Cherry-Blossom-fragrance-sensitivity-related news as it develops.

Photo credits: Anime Dojikko (clumsy girl) by "Niabot, because wikimedia commons lost his roots"; all photos, including anime, via Wikimedia Commons.