Some holiday cheer from the federal courts: Two recent decisions that reassure employers they can, indeed, deal harshly with staffers who do outrageous things — even if the workers fall into a so-called “protected class.”
Being over 40 doesn’t give you a pass to send pornographic email. A steel manufacturer in Pennsylvania was faced with a sexual harassment charge. The investigation turned up the fact that a group of six employees regularly exchanged pornographic pictures via email.
The company considered the severity of each employee’s actions — taking into account such things as the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company, and whether they were sent to customers or vendors — and fired four of the six offenders.
All four were in their late 50s or early 60s when they were canned. They filed suit, alleging that the real reason they were fired was their age.
They offered three pieces of evidence:
- The CEO remarked to one of the fired employees,”It looks like you are ready to retire. You have gray hair and are fat”
- Another of the men was transferred to a different position because management wanted “new blood” in the department
- At a 2007 management meeting, a company exec mentioned the need to recruit a “younger workforce,” and
- Older supervisors sat at one end of the table during meetings and were routinely interrupted when they tried to speak, while the VP of manufacturing welcomed the advice of younger employees.
The appeals court judge wasn’t buying it. The execs’ comments to the workers were simply “stray remarks” and “completely unrelated” to the decision to terminate the employees for violating the firm’s electronic communications policy.
The case is Hodczak v. Latrobe Specialty Steel Co. To read the full court ruling, go here.
FMLA rights don’t extend to sending photos of your boyfriend’s privates. A patient in a hospice care facility complained the a nurse had shown him and his wife three pictures, stored on her cellular phone, of her boyfriend’s genitals. The patient reported the incident.
Problem was, by the time management found out about the over-sharing of the photos, the nurse had gone out on FMLA leave.
The organization had a long-standing, if informal, policy of not contacting employees out on leave. So the employer waited until the nurse returned from leave, confronted her with the complaint, and fired her.
She sued, claiming the organization was retaliating against her because she took
FMLA leave. Her rationale? The employer waited until she returned from leave to discuss the patient’s complaint.
The judge didn’t see things that way. The fact that the company “sat on the allegations for two months before reporting them to Adams does not suggest a sinister motive on its part.” the judge wrote.
“(The employer) knew the full duration of (the nurse’s) FMLA leave in advance; if it sought to retaliate, it had no reason to wait until the leave ended. And Adams was recovering from a major surgery during her leave.”
The case is Adams v. Fayette Home Care and Hospice. To read the full decision, go here.
