At Work: Solutions for Employers & Employees

http://online.wsj.com/article/SB122486400199366913.html

Today’s Wall Street Journal reports that the International Monetary Fund’s governing board cleared its chief Dominique Strauss-Kahn of wrongdoing over an affair with a subordinate because the affair was consensual and he showed not favoritism or retribution toward her. Nevertheless, the WSJ reported that the board called the incident a “serious error in judgment.”

It is a not-surprising commentary on human nature that office romances are common, and that they are commonly perceived to be problematic.

Putting aside the question of whether an office affair is a benefit or a problem for productivity or morale, what are the consequences from an employment law point of view?

The obvious first problem is a claim of sexual harassment. A consensual relationship is not, by definition, sexual harassment. The problems for employers and employees alike tend to rear up after the affair is over. Will the subordinate employee now claim that the relationship was coerced? Will she (often, but not always, it is a she) claim that she was pressured into the relationship in order to keep her job or advance her career? If sexual favors were a quid pro quo for advancement or employment, she will have a claim under Title VII.

The second scenario that employment lawyers see is when the jilted party retaliates against the partner who broke off the relationship. This, too, can form the basis for a claim of sexual harassment under Title VII.

Another problematic scenario is the effect on workplace morale of those employees who feel that they are missing out on special treatment because they are not the one sleeping with the boss. Our office has received numerous telephone calls from employees asking if they can sue in this situation. A line of cases interpreting Title VII holds that the federal discrimination law does not forbid favoritism to a paramour. Legality aside, employers should consider what this relationship does to productivity.

The potential damage of any of these scenarios can be limited if the employer has a policy that prevents romantic relationships between those who report to one another. The WSJ article states that Southwest Airlines has a rule which bars workers from reporting to someone with whom they have a close relationship. Employees are directed to consult their supervisors to arrange a transfer to avoid violating the rule. This rule helps prevent the conflict of interest that is all too likely to arise when a boss needs to evaluate his or her lover, or when an employee wishes to break off a relationship but fears retaliation.

Posted by Tiffanie Benfer at 01:21 PM | Permalink | Comments (0) | TrackBacks (0)

At the last Presidential debate John McCain talked about Joe the Plumber and the media swooned. The anecdote was simple, easily understood, and appealing. So what if the real Joe isn't really a plumber? Never let the truth get in the way of a good story...

Barack Obama countered with the true story of Lilly Ledbetter, but nobody swooned. "Huh?" was the more common response. Ledbetter's story doesn’t fit nicely into a sound bite, and it's got all that darn complexity that comes with the truth, so why should we take the trouble to understand it?

It is worth knowing Lilly Ledbetter’s story because it says something important about employment law and something profound about the Supreme Court. Here’s the Ledbetter story, in a nutshell:

Ledbetter was hired by Goodyear Tire in 1979. When she was hired she was paid less than her male counterparts, and that was because of sex discrimination. The pay difference wasn't huge at first, but as years went by she and her male co-workers both got raises at comparable percentages. Ledbetter's lower pay in year one was compounded year after year until after nineteen years, the pay differential became huge.

Now, the sex discrimination that led to Ledbetter’s lower pay in year one is against the law, and most people agree that it should be. However, Title VII, the federal law under which Ledbetter sued has a short 180 day statute of limitations.

Here’s the rub: Ledbetter didn’t know about the discrimination in the first six months of her job. Most people don’t. Employers don’t advertise differences in pay and many have policies forbidding discussion of salaries. In any case, it isn’t good form to come into a new job and start asking too many questions about your salary. It definitely isn’t good form to go running to the EEOC during your first six months on the job, even if the law is supposed to protect you from retaliation.

Although Lilly Ledbetter won her gender discrimination case at trial, the Supreme Court reversed and said that her claim was barred because she didn’t bring it within six months of being hired. The Court said that it didn’t matter that the discrepancy was continued by the employer year after year.

The five most conservative members of the Supreme Court held that Ledbetter’s claim was barred. That holding was based on a strict, literal interpretation of Title VII’s statute of limitations. 180 days means 180 days, is what the Court basically said, and we will not make any allowances for the realities of the workplace or for an interpretation which would comport with Congressional intent. This holding gives certainty for employers, but at a huge price for employees whose claims are forever barred.

Four members of the Supreme Court dissented, arguing that the employer’s continuation of the discriminatory pay structure was itself discrimination and that it was discrimination of exactly the sort that Congress intended to eliminate.

It isn’t always clear whether the better approach is to hold strictly to rules at all costs, or to look to larger issues of intent and the consequences of the rules. How many parents of teenagers have struggled with the home version of this dilemma?

The outcome of the Supreme Court’s struggle in the Ledbetter case has implications for employees, but also for the larger questions of our country.

Lilly Ledbetter is important for what her story tells us about the strict application of the limits in employment laws, for the importance of acting promptly if you’ve been the victim of discrimination.

But, beyond the world of employment litigation, Lilly Ledbetter’s story puts a face on what it means to have Supreme Court Justices who are “strict constructionists.” It means that there will be times when Congressional intent to protect individuals will be thwarted because of a Court that gives statutory language the narrowest possible interpretation in order to grant certainty about what the “rules” are.

Link to the Ledbetter Supreme Court decision:

http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)