Soundbytes for Supervisors: Lessons Learned in the Recent Past

November 07, 2005

The everyday actions and decisions of your supervisors are the foundation of your organization’s employment practices. It is crucial that you effectively arm these individuals with the tools to make sound decisions. Hiring and/or developing supervisors with a proven track record and providing training on preventing workplace discrimination is a good start; however, it is also important to periodically refresh supervisors on these concepts and keep them updated on recent developments and trends, with a particular emphasis on how these concepts impact their daily dealings with employees.

The following is a recitation of current “must-know” information for supervisors, gleamed from recent ADA and Title VII court cases, EEOC activity, and real-life situations shared by supervisors in training classes.

• Become Familiar with the Lesser-Known Parts of the ADA
  
  Recent court cases and EEOC pronouncements require that supervisors refresh their knowledge of some of the little-known provisions of the Americans with Disabilities Act.

  • Beware that your actions may contribute to a perceived disability claim.
    
    Many of the recent developments relate to the various ways an employee may be considered a covered individual under the ADA, such as the provisions that protect an employee from discrimination because they are “regarded as” or “perceived as” being disabled. In these types of claims the actions of the involved supervisors oftentimes become crucial. For example, in one recent case¹ a court upheld a lower court ruling awarding an employee over $800,000 in damages based on the argument that the employee’s supervisor “perceived” the employee as disabled. The court found the supervisor perceived the employee as disabled and violated the ADA by: 1) describing the employee as a “long-term alcoholic” even though she smelled alcohol on the employee’s breath one time; 2) demanding the employee submit to a fitness-for-duty test or face immediate termination; 3) telling the employee she thought he was an alcoholic and opining to the employee’s wife that alcoholism was incurable; and 4) telling the employee when she fired him she thought his performance problems were caused by his alcoholism.
    
    Common sense dictates that supervisors not “label” employees as suffering from a medical condition, or attribute an employee’s performance problems to medical conditions and/or disabilities. However, these issues may arise in seemingly innocuous ways. For example, assume that a supervisor is counseling a formerly stellar employee on recent performance deficiencies. The supervisor suspects that an underlying medical condition is to blame, and out of genuine concern inquires if this is the case. Or, suppose instead that an employee starts to tell her supervisor that she has just been diagnosed with a serious illness, and the supervisor immediately pulls the employer’s Request for Accommodation forms out of her desk drawer. In both instances the supervisor was undoubtedly “pure of heart,” but has he or she now created evidence of a perception of disability? Once again, we must return to the familiar adage “no good deed goes unpunished.”
  • Learn to recognize what situations implicate the Association Provision of the ADA.
    
    Suppose that a restaurant manager learns that her sous chef’s live-in boyfriend is HIV-positive. She is fearful that the chef will contract the disease, and transmit it to the customers through food. Can she terminate the chef? Suppose you are interviewing applicants for a job that requires significant out of town travel. During the job interview an otherwise qualified applicant discloses that he or she has a child who is suffering from cancer. You are concerned that the applicant’s need to care for his or her child will interfere with the travel duties of the job. Can you refuse to hire the applicant based on this concern?
    
    The answer to both the above questions is “no” as per the EEOC, because these actions would violate the “Association Provision” of the ADA. On October 17, 2005 the EEOC issued a Question and Answer document (“Questions and Answers About the Association Provision of the Americans with Disabilities Act”²) regarding this often-forgotten provision of the ADA that protects an employer from discriminating against an applicant or an employee who has a known association with an individual with a disability. Supervisors who are left in the dark about the intricacies of the ADA could unwittingly fall afoul of this complicated concept.
  • Brush up on recent EEOC publications regarding persons who have cancer.
    
    In July 2005 the EEOC released a new guidance designed to answer questions regarding the application of the ADA to persons diagnosed with cancer.³ This guidance notes that “approximately 40 percent of the more than one million Americans diagnosed with cancer each year are working-age adults, and nearly 10 million Americans have a history or cancer.” Based on these statistics it is imperative that your supervisors understand the EEOC’s directives in this area.
    
    Notably, some of this information may be counterintuitive for many supervisors. For example, the guidance states that an employer may not tell other employees that their co-worker is being allowed certain working conditions because the co-worker has cancer. In this instance, the best response to co-worker inquiries would simply be that management had approved the change for various reasons and leave it at that.

• Stay Abreast of Recent Title VII Trends
  
  
  • Gender stereotyping is no laughing matter.
    
    A supervisor walks into the break room and overhears two employees quietly making fun of Ramone, a male employee who is not present. One of the employees puts a female’s purse over his shoulder, and then says, “Hi, My name is Ramona” in a high-pitched voice. The other two employees burst into laughter. No one else appears to have overheard this conversation. Your first instinct is to walk away and pretend that you did not hear this conversation. Do you need to address this situation?
    
    The answer is, “yes.” This situation raises the issue of “gender stereotyping,” where an employee is criticized for a perceived failure to live up to the standards of how a person of his or her gender should behave or appear. There has been a significant increase in the number of these types of claims over the last couple of years, and courts have begun to hold that this type of behavior (assuming it rises to the level of severe and pervasive) violates Title VII.⁴ By the same token this sort of behavior likely implicates your organization’s policies prohibiting sexual harassment, sexual orientation harassment (if applicable) and other policies relating to respect in the workplace.
    
    What is the best approach? Speak to each of the involved individuals privately as soon as possible. Explain that the behavior is not tolerated in the workplace, as per the organization’s policy. Document the situation and retain the documentation.
    
    
  • An employer’s duty to accommodate religious beliefs and practices outweighs “public image” concerns.
    
    An employee requests a deviation from the employer’s dress code for religious reasons. The employer argues that it need not accommodate the employee’s request because it would be contrary to the employer’s “public image.” Recent cases have addressed this issue and indicate that the employer’s position is often a losing defense, unless the employer can point to actual complaints initiated by customers. For example, a casual dining chain, Red Robin, recently was ordered to pay $150,000 and make substantial policy and procedural changes to settle a religious discrimination lawsuit filed by the EEOC.⁵ The EEOC had charged the company with refusing to accommodate the religious needs of an employee and then illegally firing him.
    
    The EEOC alleged that Red Robin refused to offer Edward Rangel, a server at the restaurant, any accommodation for his Kemetic religion, an ancient Egyptian faith. As part of his practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions encircle his wrists. According to this religion, it is a sin to intentionally conceal the religious inscriptions.
    
    Rangel had the religious inscriptions on his wrists when he was hired at the restaurant, which has a dress code that prohibits employees from having visible tattoos. The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them.
    
    Rangel claimed that he had multiple conversations with management about his faith and need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives. At a recent investment meeting, the former CFO stated that the company has "Christian" values and that Red Robin seeks out "that all-American kid" from the suburbs for its server positions, not those with "that urban kind of experience."
    
    Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its "wholesome image." Before the parties settled, Red Robin’s argument was rejected by the Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.
    
    How should a supervisor handle a situation like this? First and foremost, avoid making “knee-jerk” decisions, and notify HR. It is also preferable to make good faith efforts to offer some sort of accommodation--even one that is ultimately rejected by the employee--both from the standpoint of morale and minimizing risk. If the position requires a high degree of public contact, a lateral transfer (i.e. no reduction in pay, benefits, or advancement opportunities) to a non-customer service position may be a reasonable accommodation.
    
    
• Inappropriate Ethnic Comments “Know No Boundaries”
  
  Employment claims and verdicts based on inappropriate ethnic comments are on the rise. For example, a former Arab sales manager recently won $1.56 million in damages when a jury found that he was fired after he complained to HR about a supervisor’s demeaning comments regarding his ethnicity. The employee alleged that in 2002 his supervisor told him to take a demotion because his high profile position was "not good for the company in light of 9/ 11."
  
  A recent trend involves what I would call “out of the box” comments of this nature. Thus it is crucial that supervisors hone their skills at recognizing when a comment implicates ethnicity and needs to be addressed. For example, supervisors should recognize the need to take action in the event of any of the following situations:
  
  
  • A manager repeatedly “jokingly” referring to an employee of Arabic descent (named Mamdouh) by “westernized” names such as “Hank” in emails⁶;
    
  • A group of Hispanic employees who refer to a Hispanic co-worker as a “coconut;” and
    
  • An employee’s derogatory comments about Iraqis (made during the course of a workplace discussion of the war).
    
    
• Extra Vigilance is Required with Your Minor Employees
  
  Last year the EEOC announced the implementation of its "Youth@Work" initiative, an unprecedented national outreach and education campaign designed to proactively prevent discrimination against teenage workers. Since that time the EEOC has aggressively pursued numerous claims of sexual harassment against minors. For example, it recently reached a $765,000 settlement with Carmike Cinemas involving allegations that a convicted male sex offender touched and made inappropriate comments to 14 minor male employees.
  
  What does this mean to supervisors? It is important to carefully monitor the workplace environment within which your minor employees work. Build rapport with your minor employees so that they feel comfortable talking with you about workplace issues. Bear in mind that minor employees may tolerate certain behavior from their peers, yet feel uncomfortable if an older adult engages in the same antics.⁷ Minors are likely uncomfortable confronting adults who offend them and/or reporting offensive conduct to a manager (especially if all of their peers appear to find the conduct humorous).

• You Must Act to Protect All Who Enter Your Workplace
  
  In a recent case, a federal appellate court held that an employer was liable for punitive (punishment) damages to the employees of a third party contractor based on the racial harassment of a non-managerial employee (Davis) who referred to the plaintiffs as “ragheads” and other related epithets.⁸ The court held that the jury could have found Davis was a supervisor, based on his direct control over the daily fuel hauling operation at the terminal. The court found that Davis himself took credit for “kick[ing] those ragheads out.” The court went on to say that even if Davis was not a supervisor, his boss, Lawrence, to whom the plaintiffs complained frequently, certainly was a supervisor. The jury could have found that Lawrence did nothing to restrain Davis’s behavior and even may have sided with Davis; conduct sufficient to establish corporate liability. This is a particularly pro-plaintiff holding due to the fact that the law under which the plaintiffs sued (42 U.S.C 1981, prohibiting racial discrimination in contracts) unlike Title VII, does not cap damages.
  
  We take away several key reminders from this case. First, a supervisor must promptly notify HR if he or she receives a complaint from the employee of a third-party contractor. Second, this case reminds us that supervisors and managers cannot ignore inappropriate behavior of any employee, especially low level supervisors (such as team leads) who may have direct control over daily operations.
  
  Arming supervisors with appropriate employee relations training upon promotion is crucial to a successful and productive working environment. Often forgotten but just as crucial are regular updates, disseminated in a straight-forward and timely fashion, on these principals. Enabling your supervisors to work in an informed atmosphere increases morale, efficiency and lowers the risk of costly litigation.

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¹Moorer v. Baptist Memorial Heath Care System, 398 F. 3d 469 (6th Cir. 2005).
²This brief document sets out the EEOC’s position on this provision and its’ protections. See www.eeoc.gov.
³The publication can be viewed at www.eeoc.gov.
⁴These claims also arise in the context of pure discrimination claims. See, Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).
⁵EEOC v. Red Robin Gourmet Burgers, Inc. , 2005 WL 2090677 (W.D. Wash 2005).
⁶El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005).
⁷During an investigation a minor female employee volunteered to me that it “creeped her out” that the accused male made the comment at issue (a relatively innocuous statement that she perceived to be sexual in nature) “because he was as old as her dad.”
⁸Bains v. Arco, 405 F.3d 764 (9th Cir. 2005).

About the Author

Rachelle Berlin Weathersby, Esq. is a Consultant with Employment Practices Solutions. Prior to joining EPS in 1999, Ms. Weathersby practiced employment law with a Dallas firm, where she successfully defended Fortune 500 and small employers in a myriad of employment discrimination and wrongful termination cases. Since joining EPS, Ms. Weathersby has conducted hundreds of training sessions and investigations for a wide variety of entities, including those in the retail, hospitality, sales, restaurant, manufacturing, medical, financial, legal, staffing, energy, and information technology industries, in the US and abroad. She has also spoken at many seminars on preventing workplace discrimination claims, including the 2000-2003 and upcoming 2004 HR Southwest Conferences. She obtained her Bachelor of Science degree in Business Administration from the University of Missouri-Columbia, and her law degree from Louisiana State University. She can be reached at 817.329.8460 or 800.727.2766 or [email protected].