One of the prime causes of "preventable liability" is the failure to prominently post and update state and federally required employee notices. Posting information and keeping handbooks and policies current is vital, as the following two cases illustrate.
Policies & Procedures
Employees who see EEO notices have NO excuse. An employee did not file a Rehabilitation Act complaint with the EEOC in the proper timeframe. (The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by federal agencies.) He claimed excusable neglect. But in Gaillard v. Dept. of Veteran Affairs, the employee admitted that he had seen the EEO posters on the workplace bulletin board. The court ruled that since the posters described the proper process and time for filing complaints, the employee had the opportunity to know what he should have done—whether he actually read the posters or not. Thus, his failure to file on time was not excusable and the case was dismissed (11th Cir., 2009).
Note: This case illustrates the importance of maintaining prominent posters and of explaining those posters and related company-handbook policies during new-employee orientation. It's also advised to ask people to sign off that they have seen key posters and policies.
Weak policies/procedures can prevent a company from suing ex-employees for accessing business information. In LVRC Holdings v. Brekka, the 9th Circuit Court dismissed the Computer Fraud and Abuse Act (intended to reduce computer-system hacking) suit brought against a company's ex-employee. While employed, the company provided the worker with passwords to access information from his home computer. But after he quit, the ex-employee continued to access company information and used it in his new consulting business to refer clients to other competing businesses. In the ensuing lawsuit, the court found the company had a weak IT policy; there was no prohibition against downloading information onto a home computer and no requirement to return or delete information after use or upon termination. The company also neglected to void the password when the employee resigned. As a result, the court decided that the ex-employee had committed no violations warranting a lawsuit (2009).
The EEOC has been granted a nationwide subpoena for local religious accommodation complaint. In EEOC v. United Parcel Service (2nd Cir., 2009), two Muslim plaintiffs alleged that they were denied hire as drivers because of UPS's refusal to allow them to wear religiously required beards in "public contact" positions at its Rochester, N.Y., location. The EEOC decided to expand its investigation of the complaint into a nationwide review of UPS's religious accommodation of dress codes, so it issued a subpoena for information regarding all UPS operations. The company challenged the subpoena as overbroad for a locally filed complaint. But the court disagreed and ruled to enforce the subpoena.
Bottom line: The EEOC is not restricted by a specific complaint; it has the right to investigate discrimination in either a narrow or broad manner at its discretion. So if an issue comes to its attention because of a localized complaint, the EEOC can broaden the scope of its inquiry and its antidiscrimination enforcement. In this case, UPS has a corporate policy regarding religious accommodation and exemption from its no-beard policy. There is an allegation that the local HR specialists may have not paid heed to the corporate policy. Now the entire company is under investigation. This is a good reminder that any organization should monitor and train to assure that managers in all branches are following workplace policies.
Bob Gregg, partner in Boardman Law Firm, and Cliff Bobholz, an associate, share their roundup of diversity-related legal issues. They can be reached email@example.com and firstname.lastname@example.org, respectively.