Jujitsu in EEOC v. Kaplan

I have always loved the passage from The Art of War about the general who is facing an enemy army on the other side of a river.  The two armies are at a stand off.  The general is informed that his forces are running perilously low on arrows (and won't be able to ward off an attack). What does the general do? He orders empty boats swung out at the enemy in a feigned attack.  The enemy volleys a multitude of arrows at the boats.  The boats are hauled back in and the general has his men collect the wasted arrows.

http://www.caiguoqiang.com/projects/borrowing-your-enemys-arrows-1

What a tactic; you start from a position of weakness, then use cunning to drain your enemy of his resources while simultaneously restoring yourself to a position of strength.

This isn't an exact parallel to the general on the river, but something about what happened in  EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) reminds me of it.  In that case, which issued earlier this week, Kaplan's attorneys turned the EEOC's policies back around at themselves (twice) and as a result won a motion for summary judgment.  How can you not admire that kind of lawyering?

As you may recall, as part of its statistical discrimination initiative, in 2010, the EEOC filed a suit against Kaplan University for its practice of using applicants' credit histories as a factor in hiring decisions.  Kaplan was not docking applicants for late payments or grading them on debt/asset ratios, but was only looking at large defaults and other red flags.  The EEOC alleged that Kaplan's practice was discriminating against minorities based on the disparate impact of these practices.

Kaplan's first legal Jujitsu maneuver was during discovery where it requested documents establishing the EEOC's own practice of using credit history to assess job candidates.  The EEOC at first committed to turning the records over, then balked, then was ordered to turn them over by a not so happy federal judge (Judge Patricia Gaughan).  As it turns out, the EEOC itself looks at applicant credit reports in 84 of its 97 positions because “overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations”.  Although the case did not turn on this discovery request, there is a certain irony in that the rationale that the EEOC uses to defend its regular practice of checking applicants' credit history applies just as equally to every employer the EEOC regulates, and that irony does not appear to have been lost on Judge Gaughan.

Kaplan's second and critical act of Jujitsu came when it challenged the EEOC's prima facie case.  The EEOC's prima facie case was based on evidence that the applicants that Kaplan rejected on the basis of credit reports were disproportionately minorities.  To establish this prima facie case, the EEOC needed one critical piece of data: the race/ethnicity of the applicants.  Getting this information was an obstacle for the EEOC because Kaplan did not record the race of its applicants (the EEOC attempted to no avail to argue that the EEOC's model guidelines for employers call for gathering and retaining such information).

In order to find out the respective races of the applicants, the EEOC used their names and presumably their social security numbers to look up information about them from their local departments of motor vehicles.  However, only 14 of the 38 states from which the applicants hailed had records of race associated with drivers licenses.  For those states that did not have racial self-identification on the drivers license, the EEOC ordered the drivers license photographs of the applicants...With the pictures in hand, the EEOC had a panel of five "expert" "race raters" look at the pictures and determine the race of the applicants...You might be wondering, "What kind of credential does an expert race rater have?" The judge also wondered and was not at all impressed with their varied credentials of the raters who held advanced degrees in either economics, human development, psychology, or cultural anthropology, and had no established background in visually identifying an individual's race.  Further discrediting the "race rater" panel was its inability for 80% of its raters to reach a consensus as to the race of 11.7% of the applicants.

The lack of expertise and inability to reliably judge race was bad enough for the EEOC, but Kaplan's second Jujitsu move came in when they showed that the EEOC's own guidelines (the ones they tried to employ against Kaplan) deem visual identification as an undesirable way of identifying race and ethnicity. Thus Judge Gaughan noted that the "EEOC itself frowns on the very practice it seeks to rely on in this case" and ultimately dismissed the complaint on summary judgement for lack of a prima facie case.

Kaplan's attorneys did not exactly mimic the general on the river, but like him, they started from a position of weakness and used cunning to turn their adversary's resources against it.

NLRB Reiterates Rules on Investigation Confidentiality

A recent NLRB decision caused some ripples around the web, and I am a little bit surprised by the commotion.  The decision appears to have been a fairly straight forward reiteration of precedent that is at least a decade old.

The decision is Banner Estrella Medical Center, 358 NLRB No. 93 (2012). The cause of the controversy is the Board's ruling that the employer violated the NLRA through a policy that prohibited employee discussions about matters the employer was investigating.  After an employee made a complaint to the employer--pursuant to the employer's blanket policy--he was then forbidden from discussing the subject of the complaint with other employees.  Citing a similar decision it made last year in Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011), the Board stated

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.

This seems very similar to the Board's reasoning in Caesar’s Palace, 336 NLRB 271, 272 (2001)

The issue is whether the interests of the Respondent’s employees in discussing this aspect of their terms and conditions of employment outweighs the Respondent’s asserted legitimate and substantial business justifications.

In Caesar's Palace, the employer required silence among employees about an ongoing drug-investigation.  The Board held that the employer's interest in a safe investigation outweighed the employees' interest in discussing a workplace condition. 

In Phoenix Transit Systems, 337 NLRB 510 (2002), the Board found that the employer violated the NLRA by maintaining a confidentiality rule which prohibited employees from discussing their sexual harassment complaints among themselves.

In Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) where managers "routinely instruct[ed] employees involved in investigations not to talk with other employees about the substance of those investigations", the employer's policy was considered unlawful.




Nothing then is surprising about the Board's conclusion in Banner Estrella where the employer had a blanket policy of instructing employees to refrain from discussing the subject matter of complaints while they were being investigated.


And the underlying principle hardly seems controversial. These are the main points as I see them:
1. Under Section 7 employees have the right to discuss terms and conditions of employment.
2. The terms and conditions of employment that employees have the right to discuss include issues such as whether a manager is sexually harassing an employee(s) and whether certain employees are being treated differently than other employees.
3. Employers will at times seek to investigate controversies surrounding the terms and conditions of employment.
4. If employers tell employees that they may not discuss the controversies while they are being investigated, they have necessarily infringed on the employees' Section 7 rights.
5. Any infringement on Section 7 rights must be justified.
6. Some workplace controversies require a high need of confidentiality to protect the employers' interests and the witnesses' interest. For instance an employer investigating a drug ring in its facility has an interest in protecting its witnesses from criminal retribution.
7. Some workplace controversies do not require a high degree of confidentiality to protect an employer's or witnesses' interest.  For example an employer investigating a matter that is mostly documented through email or caught on surveillance footage may not fear the effects of collusion as much as in purely "he said, she said" investigations.
8. Requiring employees to refrain from speaking to other employees about the subject of an investigation may work against the employees' interests because it may stop them from obtaining helpful information or generating a concerted protest.
9. Some balancing of the competing interests must be taken into consideration before stopping employees from discussing workplace conditions.

Braun Drug Testing and Industrial Due Process

Yahoo news and Slate have coverage and commentary on an arbitration panel's decision to overturn the 50 game suspension of National League MVP Ryan Braun.  Braun had been suspended for testing positive for synthetic testosterone.  Braun--who maintains his innocence--with the MLB Players Association, fought the suspension on the grounds of the chain of custody provisions of nonadherence to the league's and players' Joint Drug Prevention and Treatment Program.

Braun's urine sample had been collected on a Saturday night and not sent to the testing lab until Monday.

 Article X of the Joint Program, Integrity of the Specimen, lays out a very detailed process on how the testing process works. At Section V., it provides,

7. The Collector shall check the “FedEx” box in the section entitled “Specimen Bottles(s) Released to:” Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected. [Emphasis supplied].

Although the arbitration decision has not been published, by looking at Article X it's pretty clear where at least some of the battle lines were drawn.

The decision is stirring up dismay and controversy among baseball fans, but it stands as a good illustration of "industrial due process" and a good reminder for those of us in labor and employment law that there is no substitute for a close reading of a contract.

Lent, Catholicism, Religious Accommodations

Jesus goes into the desert for 40 days and 40 nights

It's Ash Wednesday, the beginning of Lent, and I have been wondering about where the courts and agencies have come down on Catholic employees' requests for religious accommodations.  Lent has several days which are very important to Catholics: Ash Wednesday, Holy Thursday and Good Friday (additionally the feast days of St. Joseph and St. Patrick fall within Lent). Although these days are not holy days of obligation, Catholics have sincere beliefs about how to observe them. Is there much guidance regarding their requests to shift schedules to observe these days?  Additionally, Catholics are called to personal acts of penance during Lent. Is there any guidance for requests to accommodate these?

 I have been looking for some kind of guidance specifically tailored to Catholic employees, a kind of "how to" on seeking religious accommodation that would list all the ways a Catholic employee might want to be accommodated and case law and guidance on what results he might expect. If someone knows of something like this, please drop a comment or send me an email.  If someone is interested in creating one, please send me an email, I would love to work on that project.  In the meantime, I have spent a little time hunting around to compile a list of Catholic accommodation decisions:

Good Friday

 1. The Equal Employment Opportunity Commission's (EEOC) Compliance Manual states under Example 3 , "A Catholic employee requests a schedule change so that he can attend church services on Good Friday...[this and other] accommodation requests relate to a “religious” belief or practice within the meaning of Title VII."  Unfortunately, the guide does not cite a Catholic employee related case for this proposition, but it is probably referring to 2.

2. Edwin Cardona and Felipe Borrero v. U.S. Postal Service, EEOC Appeal Nos. 01882012, 01882013, via 1990-MAR Army Law. 53, *54 (Oct. 11, 1989). The Postal Service failed to reasonably accommodate the religious practices of Catholic employees where it allowed them to take only five hours of leave on Good Friday, while allowing Jewish employees to take a full day, "the agency's justification for the different treatment was based on its interpretation of Catholic cannon law, which did not require more than two hours of church attendance on Good Friday, and Jewish law, which forbade work on holy days. The EEOC held that an agency had no authority to interpret religious laws or evaluate the sincerity of an individual's religious practices in developing its policy on religious accommodation."

3. Bronx Lebanon Hospital Center (1973 Arbitration decision) via 48-DEC Disp. Resol. J. 54, 59 "the arbitrator upheld the hospital's right to discipline a Roman Catholic employee for refusing to work on Good Friday since church law did not prohibit an employee from working on that day. Citing the many church services that are held in the evening in that community to accommodate the religious needs of working people and the statement of the hospital's Roman Catholic chaplain that Catholics may work on Good Friday, the arbitrator concluded that the grievant's decision not to work that day was more a matter of religious preference as opposed to an obligation that warranted protection under the contract's nondiscrimination provision."

4. NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, (C.A.9, 1973) The NLRB conducted an election on Holy Thursday and Good Friday, but the results were not overturned.

Holy Days of Obligation and Sabbath

5.  Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass.,1996). This was a procedurally complicated case where two Catholic racetrack employees were not allowed to take off Christmas. The case decided under Massachusetts law rather than Title VII and that law was struck down as unconstitutional.

6. Salisbury v. Potter, 2010 WL 128642, (N.D.Ill., 2010).  A Postal employee whose practice was to attend mass on Saturday evenings did not suffer an adverse action when forced to work Saturdays because he had opportunity to attend on Sunday.

7. Felix v. Baxter Healthcare Corp., Not Reported in F.Supp.2d WL 3245368, (C.D.Cal., 2010) Employer attempted to accommodate employee's request to not work Sundays, but employee did not follow up on employer's suggestions.

Personal Actions

8. Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995) Catholic employee opposed to abortion wore a button and a T-shirt with photographs of a fetus. Other employees complained, the employer told her to stop wearing the shirt, and when she refused it fired her. The court held that the plaintiff's religious beliefs did not require her to wear the button in front of other employees. For commentary see 22 Harv. J.L. & Pub. Pol'y 959, 979. 

9. Tiano v. Dillard Dep't Stores, 139 F.3d 679 (9th Cir. 1998) Catholic employee's religious pilgrimage to Medjugorje, Yugoslavia was a personal preference because the employee's Catholic faith did not require that the pilgrimage be made during the employer's busiest season.

10. Several resources state without citation that there is a case where an employee's "Old Catholic" belief that she had to keep her head covered at all times was held to be protected.

11. EEOC v. AFSCME, 937 F.Supp. 166 (N.D.N.Y.1996) A Catholic employee who opposed capital punishment and abortion but who had to pay agency fee to Union was reasonably accommodated by the Union allowing the Catholic employee to donate to a charity instead.

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Update: Thanks to Ann Kiernan for posting on and linking to this and to Jon Hyman for including it in his invaluable What I Read This Week post.

Plaza Auto Redux

Last November, I posted about an animation of Plaza Auto, 355 NLRB No. 85 (2010) . It's a case that illustrates both protected concerted activity and the leeway that is sometimes given to employees when they say or do impertinent things while engaging in protected concerted activity. The employee in the case was a car salesman who was fired after he raised various concerns on behalf of himself and other employees including complaints about whether the employer was paying the salesmen minimum wage, whether the employer was padding vehicle costs (which cut into commissions), breaks, and access to bathrooms.  During a meeting with his boss, the employee raised some of these concerns and was told in so many words that he was free to quit. At that point, the employee let loose a torrent of words. The Board determined that the employee had been engaged in protected concerted activity and had to determine whether the employee lost the protection of the Act by going overboard with his words during the meeting.  The Board applied its Atlantic Steel doctrine and determined that he had not lost the protection of the Act and that his discharge was unlawful.  Today, the Ninth Circuit took issue with Board's reasoning with regard to one of the four Atlantic Steel factors, nature of the outburst (the others are place of the discussion, subject matter of the discussion; and whether the outburst was provoked by the employer's unfair labor practice), and remanded the decision to the Board for further analysis.

Link to the Board decision here

Here's my animation:



This animation is just a rough imagining of the situation as depicted in the case. Some of the language is from the case, but not all of the language is taken from the case. Artistic liberty and technical limitations abound.