Quirky Questions

Real Life Employment Law

Quirky Question #288: Zika in the Workplace?

Question:
We have been flooded with coverage of Zika, from the Rio Olympics to the recent travel restrictions in Miami As an employer, I want to be prepared and proactive to protect my employees, but I am also concerned about overreacting. I understand there are many reported cases of Zika, but only six cases where the individual actually became infected with the virus by a mosquito bite in the United States. I want my company to take prudent measures, but also not to panic and cause my employees to unnecessarily fear for their wellbeing. What can (and should) I do to protect my employees? Also, are there any state or federal employment law obligations implicated by a potential Zika outbreak that I should be aware of?

Answer: By Rebecca Bernhard and Steve Curry
Striking the right balance in your company’s reaction to Zika can be tricky, but there are some principles to follow, based on experience with past health issues. Zika is the latest in a line of serious medical conditions that have generated substantial media coverage and instilled fear among the general public. For example, we previously answered a similar question related to the Ebola outbreak. Like those other diseases, the World Health Organization has characterized Zika as an outbreak and emergency.
But every disease has unique aspects. Unlike Ebola and some other prior emergencies, the most serious health concerns with Zika are not for those first infected by the virus, but rather unborn children of infected parents. An adult who contracts Zika often has only mild symptoms (sometimes no symptoms at all). The bigger risks are birth defects to the unborn children of a woman who contracts Zika while pregnant. Zika is transmitted primarily by mosquitos, but can also be passed from human-to-human through contact with infected bodily fluids, including sexual contact.
Due to the extensive coverage of Zika and the serious health concerns for those who may have children, employers are wise to consider how they will address any problems associated with the Zika virus. In general, workers who are exposed to mosquitos while on the job or the blood or other bodily fluids of infected individuals may be at risk for acquiring Zika while working. The first step to consider would be informing employees of the risks of Zika, its symptoms, and simple preventative health measures that help to stop the spread of all diseases, including avoiding contact with bodily fluids of those that are ill, washing hands, and avoiding touching eyes, nose, or mouth. With few reports of Zika spread by mosquitos in the United States, employers can focus more on preventative measures to limit the potential spread through exposure to bodily fluids.
Employers should also consider some of the legal concerns the Zika threat might implicate. An employee’s own infection—to the extent it does not relate to the infection of their child—is not likely a “severe health condition” under the Family Medical Leave Act (FMLA), because the symptoms for an adult are usually mild. But that doesn’t mean you can ignore the FMLA altogether. An infection affecting a fetus (and time required to care for the child after birth) may qualify as a “severe health condition” under the FMLA. Thus, an employee who must care for a family member who is infected is entitled to leave under the FMLA. As a reminder, FMLA leave does not need be paid, and federal law does not prohibit employers from requiring that employees use paid leave contemporaneously with any FMLA leave.
We sometimes receive questions regarding whether an employee is entitled to refuse to come to work due to a concern about illness and, conversely, whether an employer can prohibit a sick, or suspected sick, employee from showing up for work (these questions are most common during flu season). Under the Occupational Safety and Health Act (“OSHA”), an employee may refuse to work due to safety concerns at the workplace, as long as those concerns are reasonable. At this point, concerns about contracting Zika are probably not reasonable concerns that would allow an employee to refuse to come to work, except for employees involved in very specific travel. Currently, the Centers for Disease Control and Prevention (CDC) recommends that all people who have traveled to areas where Zika is locally acquired monitor their symptoms and avoid unprotected sexual contact for a 28-day period. The CDC has identified only one area in the United States (the Wynwood neighborhood of Miami, Florida) where Zika is locally acquired. Outside of this area, an employee’s concerns of contracting Zika while on the job are relatively minimal, considering the easy prevention of unsafe exposure to bodily fluids. It may be advisable for employers to request that any employee who has traveled to a Zika-affected area work from home or take a paid leave of absence for the duration of the 7-day during which Zika can be passed from an infected person to another mosquito.
While employers can discourage travel to, and inquire whether employees have recently returned from, Zika-affected areas, employers cannot forbid travel to these areas. When discouraging travel or inquiring into travel history, employers need to be aware of federal and state discrimination laws. Any policy regarding Zika should be applied uniformly. For example, employers should ensure employees who have ties to South America are not unlawfully questioned with respect to their exposure or their family members’ exposure to the Zika virus.

Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?

Question:

We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of the individual manager making the layoff selections, and those selections were based on years of performance ratings.  However, the lawyer hired by our ex-employee says that doesn’t matter, because the ex-employee’s direct supervisor was racially biased.  He says that the bias of the direct supervisor taints the entire process and that the manager was merely a “cat’s paw.”  Let’s assume for a moment that the direct supervisor is a little rough around the edges.  Do we have a problem here, even though the manager is fair and unbiased?  And what the heck is a “cat’s paw” anyway?

Answer:

To answer your second question first, a “cat’s paw” is a person used by another as a dupe or tool. The phrase derives from an ancient fable in which a clever and unscrupulous monkey convinces a cat to remove roasted chestnuts from a hot fire.  The monkey makes off with the chestnuts, leaving the cat with nothing but burnt paws.  How exactly this became a metaphor in employment discrimination law is beyond the scope of this article, but a “cat’s paw” case is one in which an unbiased manager is used as a tool by a biased supervisor or manager to implement an employment decision based on the discrimination and animus of the unscrupulous supervisor or manager.

In a true cat’s paw case, the biased supervisor provides the basis for getting rid of an employee, for example through an unfairly negative performance evaluation, while the actual decision is implemented by an unbiased manager who simply accepts the biased information uncritically.

To address this situation, courts apply a more employee-friendly analysis in cat’s paw cases. Specifically, courts utilize the “mixed motives” analysis of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which is generally less rigorous than the classic McDonnell Douglas framework and may permit a somewhat weaker case to survive summary judgment and proceed to trial.  The purpose of the cat’s paw rule, as the United States Court of Appeals for the Eighth Circuit has stated, is to provide that “an employer cannot shield itself from liability for unlawful termination by using a purportedly independent person or committee as the decision maker where the decision maker merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful design.” Richardson v. Sugg, 446 F.3d 1046, 1060 (8th Cir. 2006) (emphasis added).

What does that mean in the situation you describe? It will ultimately depend on the details, but the Eighth Circuit recently emphasized the limitations on the cat’s paw doctrine in affirming summary judgment for the employer.   In Cherry v. Siemens Healthcare Diagnostics, Inc., the Eighth Circuit affirmed summary judgment dismissing the race discrimination claims brought by Cherry, who was selected for a layoff.  Cherry, who was African American, had worked for Siemens for 30 years, until he was selected for layoff in 2011.  During his last few years at Siemens, he experienced treatment from a supervisor named Raymer and a coworker that were derogatory, disrespectful and may have been based on racial bias.  As Cherry’s supervisor, Raymer had performed employment evaluations on Cherry in 2009, 2010 and 2011, which were used to help identify which employees would be laid off.  Cherry was one of the lowest ranked employees and was selected for layoff by a manager named Siebert.  There was no evidence that Siebert had ever mistreated Cherry or had any bias against him.

The district court granted summary judgment dismissing Cherry’s claims. Under the familiar McDonnell Douglas analysis, the court found that Siemens had offered a legitimate, non-discriminatory reason for its layoff selection (Cherry’s poor performance evaluations) and that Cherry had failed to offer evidence showing that that reason was a pretext for unlawful discrimination.

On appeal, Cherry strenuously argued the “cat’s paw” theory. Because there was evidence that Raymer was biased against him based on his race, Cherry argued that Raymer’s evaluations were tainted by discrimination and could not lawfully be used in the layoff process.

However, the Eighth Circuit rejected this argument, because the cat’s paw theory requires that the biased supervisor actually use the non-biased manager as a dupe or tool. Raymer did not know about the layoff plans when he conducted the performance evaluations.  Therefore, the court reasoned, Raymer could not have been using Siebert as a dupe or tool to achieve Cherry’s termination.  The layoff was evaluated based on Siebert’s motives, and those were not discriminatory.

Cherry also failed to support his case under the McDonnell Douglas analysis.  The Court said that “there is no evidence in the record to support a finding of pretext as to Siebert, who was the actual decision maker.”  The Cherry case provides a striking example of how an employer can prevail, on summary judgment, even when the underlying information used to make layoff decisions is potentially tainted by racial or other bias.  The case illustrates the following points:

  • The employer should be clear on who the actual decision maker or decision makers are in a layoff or other termination situation. You want to know which individuals are going to have their motives analyzed;
  • Make certain those individuals are people you have confidence in. Siemens prevailed in the Cherry case because Siebert was seen as a fair and unbiased decision maker;
  • Where appropriate, utilize data in making layoff decisions that has been generated for general purposes, such as prior employment evaluations. If Raymer had been providing input, knowing it was being used to decide who would be laid off, the outcome of the case may well have been different.

Quirky Question #286: Best Practices on Restroom Access and Terminology for Transgender Employees

Question: There has been a lot of news coverage lately on restroom policies related to transgender employees.  Can you provide some guidance on how to structure our restroom-use policies to be both lawful and respectful of all employees?  More generally, can you help me understand the appropriate, respectful terminology in this area?  I certainly don’t want to offend anyone on purpose, and I also don’t want to do so by mistake. Answer→

Quirky Question #285: Potholes on the Ethical “High Road”

Question:  We learned that some of our employees may have been engaging in unethical, and perhaps even illegal, behavior.  We don’t tolerate this, so we hired a law firm to conduct an investigation, and based on the results of that investigation, we terminated the employees.  The terminated employees were high-profile employees, and we told some people why they were fired.  Also, when we fired the employees, we briefly referenced the investigation, but didn’t provide them with any substantive information about it.  Do you see any problems with that?

Answer→

Quirky Question #284: If a tree falls in the forest and no one hears it, can you still unlawfully retaliate against it?

Question: One of our male supervisors wants to fire a female employee who complained that he was sexually harassing her. The harassment allegations appear to have some substance: he asked her for pictures of herself in a bikini; told her to “stay off [her] knees,” which she viewed as sexual innuendo; and told her that her regulation length shorts were too short. Also, the grounds for termination (driving a vehicle with the door open, creating a safety hazard) have been overlooked in other situations. We are a little worried that she will claim we are retaliating against her for the sexual harassment complaint.  But the supervisor says he never heard about the sexual harassment complaint.  So, if he didn’t know about the complaint, he could not possibly retaliate against her on the basis of that complaint, right?  You could get this case thrown out before it ever went to trial, right?

Answer→

Quirky Question #283: They Stole Our Stuff, Can We Sue?

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Question: My company recently terminated an employee, and we are very worried she accessed her email inappropriately in the days before she was fired. The timing of it all is … well, quirky.

Here’s what happened: The employee’s manager met with her on a Friday and informed her that her performance was not acceptable, even after several earlier warnings to improve.  The manager told the employee to go home early and return to work first thing Monday to meet with the manager and the manager’s supervisor.  The supervisor, manager, and employee met as planned on Monday and the employee was terminated.  Later that day, however, our IT folks reviewed her account and determined she had accessed her email dozens of times on Saturday and Sunday – there are no “sent messages” in her account, so we figure that she was printing off e-mail and maybe contacts because she saw the writing on the wall about the Monday meeting.

Our policies allow employees to access email from home – but we can’t think of any reason why she would have done so over this weekend and IT said she hadn’t logged in from home for at least six months. Needless to say, the timing is very suspicious, and we’re thinking about suing to find out what she did when she logged in.  Can we?

Answer→

A New Question Every Week

Nearly every day, executives and managers, and the in-house counsel and Human Resources professionals who work with them, are confronted with unanticipated questions regarding the workforce. Just when they think they have "seen it all," along comes a new and often stranger scenario involving an odd twist to an area they thought they fully understood. These individuals often find themselves back at square one when trying to construct an appropriate response and devise a creative solution to the problem presented. Sometimes these "Quirky Questions" can be resolved easily; other times, they implicate practical and legal issues that are not immediately apparent. This Quirky Questions blog addresses these unanticipated employment questions.

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