'Abusive' Workers May Be an Employer's Liability

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

Employees must work well with others. A 51-year-old employee was not called back after a layoff; he then applied for and was denied interviews for other open jobs. As a result, he sued for age discrimination. In Viergutz v. Lucent Technologies Inc. (6th Cir., 2010), the company successfully defended the case with tangible proof that it did not consider the plaintiff eligible for reinstatement because he did not work well with others and needed constant supervision. There was evidence that while employed, his coworkers considered him “ready to snap” and were always on guard to not set off his temper. The court ruled that “the inability to get along with coworkers is a sufficient basis” for non-recall, refusal to hire an ex-employee or to fire a current worker. Note: This case should be kept in mind in light of the proposed Wisconsin Abusive Workplace Act. Under that anti-bullying law, an employer could also be liable to coworkers if it rehired an abusive ex-employee.

Shift change may be a reasonable accommodation for employees who cannot drive to work. Under the Americans with Disabilities Act (ADA), an accommodation usually focuses on on-the-job items to assist a person with performing duties. In Colwell v. Rite Aid Corp. (3rd Cir., 2010), however, the employee could perform all duties well. But when she developed blindness in one eye, she could no longer drive to work at night. It was also shown that alternative transportation, public or private, was unavailable. The company informed the employee that getting to work was her responsibility and did not explore a change to the day shift. She resigned and then sued, claiming constructive discharge. The court agreed with the plaintiff, finding that the employer apparently failed to engage in the interactive process and failed to consider the accommodation of an on-the-job schedule change. The ADA specifically states that “reasonable accommodation can include a modified work schedule.”

Planning to file for bankruptcy is a protected activity. The Federal Bankruptcy Law prohibits employment discrimination against those who “have filed” a bankruptcy (current or past). In Robinette v. WESTconsin Credit Union (W.D. Wis., 2010), the employer learned that an employee was contemplating filing a bankruptcy and fired her because the bankruptcy would reflect badly on the credit unit. The employer defended the discharge case by claiming that the law only applied after a bankruptcy files, not for “contemplating.” But the court disagreed, prohibiting a preemptive strike by employers as long as the employee did follow through and actually file the bankruptcy. The judge also ruled that the bankruptcy law was the only remedy available, dismissing the plaintiff’s additional unfair discharge case under Wisconsin law.

A placement agency is not required to prove whether or not its client company would have an undue hardship to accommodate religious clothing. Kelly Services did not place a Muslim woman at a manufacturing plant because its client’s safety rules prohibited loose clothing, including head coverings. The woman was religiously required to wear a khimar head covering. Kelly Services offered a series of other placements, including some that paid more. But the woman refused, insisting she should be assigned to the manufacturing plant and that her khimar should be accommodated. In EEOC v. Kelly Services Inc., the placement agency was sued but not the manufacturing plant. The court found in favor of Kelly Services; it ruled that Kelly Services had no belief that the safe-clothing requirement was pretext and that the placement agency is not required to provide a defense on behalf of another, nonparty company (its client) for its policies. The plaintiff should have brought the manufacturing company into the case in order to challenge its policies (8th Cir., 2010).

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