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Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict. View articles by Anne

Background Check Update: There’s A New FCRA Form in TownIf you conduct pre-hire background checks, you know you have to comply with the Fair Credit Reporting Act (FCRA) or risk trouble (called lawsuits). Part of that compliance is providing notice to the applicant if you are going to take an adverse action based on the background check, along with a Summary of Your Rights Under the Fair Credit Reporting Act. Well, without any fanfare (or advance notice), the Consumer Financial Protection Bureau (CFPB) changed that Summary form, and we are all supposed to be using it.

Why you ask? In May 2018, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act. This law was a response to some big time data breaches and requires nationwide consumer protection agencies to provide free “national security freezes,” which was supposed to make it harder for identity thieves to open accounts in the consumer’s name. The law further required that if someone gets the Summary of Your Rights under FCRA or the Summary of Consumer Identity Theft Rights, the consumer would also get a notice about the security freeze. The new form adds the language about the security freeze. So start using it.

Now that you are compliant, if you have any comments or possible revisions to the form, you have until November 19, 2018, to send them to the CFPB.

Just What Does A Racially Hostile Environment Look Like? The Eleventh Circuit Provides Some GuidanceWhat constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that it affects the person’s work performance? In Brenda Smelter v. Southern Home Care Services, Inc., d.b.a. Rescare Homecare, the Eleventh Circuit addresses those questions.

The Facts

From July 2 until September 9, 2013, Brenda Smelter, a black woman, worked for Rescare as a customer service supervisor. She struggled with her work and admittedly made errors, for which she was written up. On September 9, she got into a verbal altercation with a coworker and, given her prior performance issues and the fact that she was still in her probationary period, Rescare terminated her employment. Sounds pretty straightforward, right? Not so fast.

Although Ms. Smelter admits her skills may have been lacking, she claims that nearly every day of the eight weeks that she worked in Rescare’s Perry office two of her white coworkers made racist comments to each other. She testified that another customer service supervisor said:

  • Black men were “lazy” and “the scum of the earth.”
  • Black women “had babies on welfare.”
  • President Barack Obama’s “big ears” made him look “like a monkey.”
  • She did not know that black people could be buried on Sundays.
  • Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes.

Smelter said that the office manager also made racist remarks, including that she saw black people exiting a bus at a Walmart store and commented that it looked like they were “chained together” and that she wished she could “send them all back . . . to Africa.” Although she never reported these comments to a supervisor until the last day of her employment, she testified that the branch manager overheard at least some of the remarks and that these racist comments were “funny to everybody that worked in the Perry office” with her, even the branch manager.

The most severe comment came on Smelter’s last day at work, when she got into a heated discussion with the other customer service supervisor who allegedly jumped up, hit her desk in a rage, and said “get out of my office . . . you dumb black n       .” The branch manager investigated the altercation, and Ms. Smelter alleges that she told her about the prior racial comments and the epithet. Rescare concluded that Ms. Smelter started the altercation and terminated her employment.

Ms. Smelter sued for a racially hostile work environment and claimed that Rescare terminated her both because of her race and in retaliation for her report to the branch manager about the racial comments. Rescare moved for summary judgment, and the district court granted it. Ms. Smelter appealed.

The Eleventh Circuit’s Decision

The Eleventh Circuit agreed with the district court on the termination claims. The court found that Ms. Smelter had not offered evidence that Rescare’s reasons for terminating her were a pretext for race discrimination or retaliation. However, the court overturned the decision on the hostile work environment claim.

The court focused on whether Ms. Smelter had established that the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment. It looked at four factors, assessing whether a reasonable jury could find it severe or pervasive:

(1) The frequency of the conduct – Eight comments in the two months was sufficiently frequent.

(2) The severity of the conduct – The negative comments about black people made around Ms. Smelter, capped off with the epithet directed to her on her last day, were sufficiently severe.

(3) Whether the conduct is physically threatening or humiliating, or a mere offensive utterance – Although the conduct was not necessarily physically threatening, the daily racial comments were sufficiently humiliating.

(4) Whether the conduct unreasonably interferes with the employee’s job performance -Although Ms. Smelter had little or no evidence that the conduct interfered with her work performance, “considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to Smelter about her” the other three factors sufficed.

Finally, the court found that a reasonable jury could conclude that Rescare had actual notice of the racial comments because Ms. Smelter testified that the branch manager overheard some of the remarks and thought they were funny.

Keep in mind that the court has to view the evidence in the light most favorable to Ms. Smelter. In this case, the coworkers denied making any racist comments, and the branch manager denied hearing any such comments or thinking they were funny.

Takeaways

First, the court comes close to saying that the one incident with the racial epithet could be sufficient. Do not assume one time isn’t enough to make it a federal case.

Second, that an employee does not report harassment is not evidence that it didn’t bother him or her. The court specifically notes that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment as hostile or abusive. So, if a supervisor witnesses conduct that may be close to the line but the employee does not react to it—investigate. Do not assume it will go away.

Third, an employee does not have to prove the harassment unreasonably interfered with work performance. If the other factors are strong, the absence of this one is not fatal.

Finally, Rescare won the termination claims. Given that the company terminated someone the same day that she reported that she had just been called the N-word, that is pretty amazing. Apparently Rescare had properly documented Ms. Smelter’s performance deficiencies. So, make sure you are addressing performance issues, even with probationary employees.

3 Steps to Figuring Out ADA Reasonable Accommodations for Mental IllnessWhat do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.

We have talked before about your general obligations under the ADA. So, as a brief refresher, here are some steps to follow once your employee says he or she is suffering from a mental disability and needs a reasonable accommodation:

STEP ONE: Engage in the interactive process.

The ADA requires that you engage in an interactive process, so talk with the employee.

  • With which essential functions does the employee struggle?
  • What reasonable accommodations does the employee think would enable him or her to perform those functions?
  • What, if any, restrictions has the doctor provided?

Your first discussion is for you to collect information, so let the employee do the talking. Don’t assume that this employee’s depression/anxiety disorder/PTSD is the same as another employee’s or anyone else’s. You can and should get the employee’s doctor’s input on this. I have found that what employees want and what their doctors say they need are not always the same thing. Keep your questions about the disability job-related and consistent with business necessity. This is a process, so it could take several conversations. Be sure to document it thoroughly.

STEP TWO: Determine if the requested accommodation is reasonable.

A reasonable accommodation enables the employee to perform the essential functions of a job. A request is not reasonable if it eliminates an essential job function, poses a direct threat of imminent harm, or imposes an undue hardship.

Keep an eye on the essential functions of the job. You do not have to remove essential functions and create a new job for the employee. You may, however, have to reassign or eliminate non-essential functions. In assessing whether the employee’s performance of the job poses a direct threat, be objective. Get expert input on whether any proposed changes would work or if they would increase danger. Whether the proposed accommodation poses an undue hardship, such as by dramatically increasing costs or affecting productivity, is also a consideration, but in practice, that can be tough to prove.

Look carefully at the employee’s requested accommodation and if you don’t think it is reasonable, offer an alternative. Again, this is an interactive process. Feel free to get the doctor’s input.

STEP THREE: If you can’t accommodate, is transfer or leave an option?

If you cannot come up with a way for the employee to safely perform the current job, do you have a vacancy in which you can accommodate the disability? You do not have to displace someone or create a new position, but you should consider all vacant positions. If the employee is qualified for the vacant job, offer it as a reasonable accommodation. The employee does not have to compete for the position but does have to take the position as it is—even if it pays less, is on a different schedule, etc. Unlike an FMLA-related transfer, this is not a temporary move.

If you can’t accommodate and have no vacancies, your last resort is to determine if leave is a reasonable accommodation. Ask the employee if taking some leave would enable him or her to return to work and do the job’s essential functions. With mental disabilities, this could be a period of inpatient or outpatient treatment or medication adjustment. You should consider this option even if there is no FMLA available and you don’t have a company leave policy. It should be well-defined (i.e., one week, one month), and you do not have to grant open-ended leave.

If you can’t accommodate, and transfer or leave is not an option, you may have to terminate an employee. Before taking that final step, make sure you have properly documented your process and can prove how reasonable you have been. Of course, I think you should have your employment lawyer on speed dial but at the very least, talk to your lawyer before you terminate.