One employment law claim that has been quickly becoming more popular these days is "family status discrimination". That is, discriminating against someone based on their familial obligations or simply because they have a family in the first place.

Widespread use of this claim is so recent that it does not even have a consistent name in legal circles. We call it "family status discrimination", but others call it "family responsibilities discrimination", "FSD" or "FRD" for short, "caregiver discrimination" and countless other names, but they are all the same idea.

This post is the first in a series on the subject which is fairly expansive, quite interesting and can also get confusing.

The Impetus

The reason I bring this subject up now is because I just started a case representing two women against the same former employer who violated almost all of the various family status discrimination theories in dealing with one or both of them.

It is a very interesting case for several reasons, not the least of which is the ironic twist that the employer is an organization that actively promotes equality for women and the building of strong families as its mission.

While settlement discussions are under way, I cannot speak too much about this case in particular, but if it does end up in litigation I will post more details such as the identity of the employer.

The Legal Basis

I should first point out that the term "family status" is not mentioned anywhere in federal or California employment law statutes.

Instead, these claims are based on other existing employment laws, such as gender, marital status or pregnancy discrimination. The Family Medical Leave Act, California Family Rights Act, Pregnancy Disability Leave and other statutes also come into play.

Family status discrimination is one of those areas where employee-rights attorneys are very "creative" in crafting their legal theories. New ways of approaching the claims are constantly being tested in courts across the country and often prevailing.

This series is meant to be an exploration of these various theories and how they can be used under California law to protect employees.

A timely study by the Institute for Corporate Productivity (i4cp) that was released on Tuesday finds that the vast majority of corporations have some sort of formal anti-discrimination policy.

However, failure to adequately communicate such policies is a frequent problem, where only 80% of those companies rate anti-discrimination training "either somewhat or very important".

This study is certainly timely in the debate over Tribune company's hopelessly inadequate anti-harassment policy. Training employees using such a policy might actually have a negative effect, since it does not even recognize creation of a hostile work environment as illegal harassment.

An article in Thursday's Los Angeles Times discusses their own parent company, Tribune Co.'s new employee handbook that was introduced by their CEO, Sam Zell, via a recent e-mail to employees.

This caught my eye because it is not every day that a company publicly releases or discusses their employee handbook. In fact, many handbooks actually state that its pages are the employer's property and must be returned at the end of employment.

The (Bad) Idea

According to Zell, the handbook outlines "our company's new core values" and "reminds us not to take ourselves too seriously, and to have fun." Unfortunately for the Los Angeles Times, legal documents (which are almost always referred to in employment law cases by one or both sides) do serve a legal function.

Although the handbook has the requisite disclaimer stating that it is not a contract, its provisions may be modified at any time, etc. and contains a footnote stating "Of course, Tribune follows...state laws," this will not let them off the hook in future litigation.

In provision 18.1.4 of the new handbook, the Tribune points out that:

It's good judgment not to put in writing what you don't want printed on the front page of a newspaper. Or posted on a website...

The company probably should have taken its own advice and left some of these provisions out of their official employee handbook, but it appears they did not consult an attorney before releasing it, so now they are stuck with it.

Use of Employee Handbooks in Litigation

Employee handbooks are used in litigation to demonstrate an employer's mindset, attitudes or as foreshadowing conduct at issue in a lawsuit.

For example, a handbook might say "you will be terminated immediately if you cannot satisfactorily perform your job due to a medical condition" (from an actual handbook I have seen in a case).

This is extremely good evidence in a disability discrimination or family medical leave case because it can be used as proof that the employer has already stated its intention not to comply with the law.

Examples from the Tribune Handbook

Here are some examples from the recently implemented handbook that point out that likely will cause its outside employment counsel to drive their head repeatedly into the nearest brick wall.

Harassment is not "Harassment"

From section 4, "Harassment Policy (Sexual & Otherwise), of part 3, "Employee Manual" of the handbook:

4.1 Working at Tribune means accepting a creative, quirky,...odd, humorous,...opinionated and sometimes annoying atmosphere.

4.2 Working at Tribune means accepting that sometimes you might hear a word that you...might not use...experience an attitude you don't share...[or] hear a joke that you might not consider funny.

4.3 This should be understood, should not be a surprise and is not considered harassment.

4.4 Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity. (emphasis added)

Provision 4.4 actually refers to the relatively uncommon "quid pro quo" sexual harassment, which includes "sleep with me or you are fired"-type conduct.

The vastly more prevalent form of sexual harassment is "hostile work environment" harassment, which occurs when a sexually-charged atmosphere is created, such as frequent, unwelcome sexual propositions towards an employee.

In fact, hostile work environment claims include situations where the conduct is not even directed at the plaintiff, such as other employees' constant viewing of pornography in close proximity to her or constant sexual comments about other employees to or within hearing distance of her.

Provisions 4.1-4.2 could easily be read to encompass a hostile work environment and 4.3's bold statement that in the company's view it is simply "not considered harassment". It does not take much work for a plaintiff's attorney to argue that this provision basically says that the company does not consider hostile work environments to be a form of harassment.

If an employee complains about such conduct and is ignored or retaliated against, provision 4.3 will be very damaging to the employer's case because its state position is that there is nothing wrong with the conduct in the first place.

Managers Love it When You Question Their Authority

8. QUESTION AUTHORITY. ...Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

In theory, this might seem to be a "breath of fresh air" and a great company-wide "open door policy". However, in practice this policy is likely bad for both employees and the company itself.

For the company, it is basically a promise that they will not take any action against an employee for complaining, no matter what it is about or how much they complaint. Every workplace has an employee who just loves to complain about anything and everything constantly. This provision both encourages such behavior and bars management from doing anything about it.

On the other side of the issue, I advise employees every day to be careful with taking such open-door policies too literally. It is commendable for a company to have a well-intentioned policy like this in place, but it has to be (and rarely is) followed by lower-level managers who usually do not like their orders or policies being questioned. In only a rare case will the employee earn any "respect" for complaining.

If an employee takes advantage of a policy like this, they should do so in writing and document both their complaints and their supervisor's reactions. That way, if retaliation does occur then there is a paper trail to prove it.

Alcoholism: Only Disease You Can Get in Trouble for Having¹

7.1 If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated...

Alcoholics and drug addicts are considered to be disabled under California law and an employer terminates them for it at their own risk. In many circumstances, the Americans with Disabilities Act also applies to these situations.

In fact, under California Labor Code § 1025-1028, employers are required to reasonably accommodate these employees by allowing them to attend an alcohol or drug rehabilitation program if they have a substance abuse problem.

These types of disability discrimination claims are often difficult to prove and an uphill battle to establish that the disability (and not its side effects along, e.g. tardiness, poor performance) is the reason for termination.

However, a handbook provision like this could be the piece of evidence that wins the case, since this is singled out as a specific reason for terminating a poor performer. In other words, it does not say "If you have a mental breakdown and fail to perform...," so an argument that the difference is the specific disability itself is the reason gains a great deal of credibility.

"The company intends to actively discriminate..."

2.4 The company intends to actively discriminate based on job performance, ability and attitude.

2.5 Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability, or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited.

There are a couple of issues with this provision that merit discussion, both of which can turn out bad for the company.

First, these paragraphs essentially promise that they will not terminate or otherwise discriminate based on any reason not related to performance, ability or attitude. Therefore, budget cuts, general "personality conflicts" with co-workers or management, or simply their manager's not liking them are not valid reasons to terminate or take any other action against an employee.

Second, while singling out someone with the "inability to tell a joke, the occasional poor wardrobe choice or bad hair day" as "unprotected" is clearly intended as a light-hearted joke, it could also be applied to that "weird" janitor/mailroom person/manual laborer who works for the company. I have represented some of these employees who are terminated for their social awkwardness which is sometimes a symptom of a disability such as mild autism.

While this may seem far-fetched, Tribune Co. has tens of thousands of employees and such an issue is bound to arise at some point in the next several years.

That's What Employment Law Attorneys Are For

Apparently the handbook was actually written by Randy Michaels, Tribune's CEO for Interactive Broadcasting. He has said he believe that "The more policies you have, the more opportunities there are for someone who is very unhappy to sue." However, with the right disclaimers in place, breaking a promise in an employee handbook itself provides no basis to sue.

Although our firm only practices employee rights law and does not advise employers or draft employee handbooks, this is most certainly the kind of thing that makes management-side employment law attorneys crucial in preventing lawsuits and other problems before they occur.

Mr. Michaels seems all too eager to say he is "amazed and amused at what lawyers get businesspeople to do," suggesting that other companies who pay lawyers to write (as the LA Time piece puts it) "the mind-numbing, lawyer gobbledygook in most corporate manuals" are being swindled or misled. In fact, that "gobbledygook" is often instrumental in successfully defeating many lawsuits by employees.

Once the Tribune faces its first lawsuit where this handbook is used as evidence against them, they will hopefully realize that Mr. Michaels has actually created more legal liabilities than he has prevented.

At that point, I will feel sorry for the attorney who has to defend a company that believes they will "have fewer legal problems with plain English and common sense than with pages and pages of rules". Essentially, that their own gobbledygook is better than any gobbledygook a lawyer could have written for them.

Good luck with that.

I have tried to tune out most of the political primary hysteria because I (1) made up my mind about who I would be supporting in the election long ago and (2) I live in California, so my opinion is not really that important at this stage.

Today I happened to stumble across some of Ron Paul's comments in Freedom Under Siege, a book (the link is to a 160 page pdf file of it) he published in 1987. Although I have heard in the past about racist, homophobic, intolerant, etc. comments he has made, I had not heard about some of the things he says about employee rights in this book.

I am neither a proponent of Ron Paul, nor am I an active opponent of his. I believe he has many great ideas, but like most people with a few great radical ideas, he also has a few radical bad ideas. These will be chronicled in a series of posts over the next few days. Originally this was going to be just one post, but the more I read this book, the more material I came up with.

"So-Called Harassment"

The first passage that jumped out at me is on page 17 of the book where he states the following about employees who are sexually harassed by their employers:

Why don't they quit once the so-called harassment starts? ...[H]ow can the harassee escape [any] responsibility for the problem? Seeking protection under civil rights legislation is hardly acceptable...pressure and submission is hardly an example of a violation of one's employment rights.

Mr. Paul apparently believes that employers should be free to demand sexual favors from their employees and then terminate them if they are refused. Clearly this viewpoint is offensive to women and is not going to be adopted by anyone other than the far-far-far-right wing of American politics, but it also defies logic from a pure policy standpoint.

Why Don't they Just Quit?

In Ron Paul's view, an employee who is sexually harassed should just walk down the street and get a different job. Apparently the employer's "punishment" is that the employee quits.

However, this ignores the reality that employees cannot just start a new job right away without suffering any damages. What if that employee left a good job to work for this new employer? What if the employee moved to take this job and it is the only company where she can practice in her field (e.g. the only hospital or school in the area)?

"Hardly" a Violation of Employment Rights

Take this hypothetical of a single mother who works hard at her job as a secretary to put food on the table for her children. She has a disabled child who needs frequent medical care and had to wait a full year to get coverage under her employer's health plan. She has received steady raises in her pay to where she finally has enough money coming in to pay her bills and feed her family.

One day, the owner of the company asks her into his office, closes the door behind her and asks her to have sex with him on the couch. She refuses and he says if she is not undressed and on the couch in thirty seconds she is fired.

Current Law

Under current law in both California and the rest of the United States, the employee could simply refuse her employer's advances and sue for lost wages and benefits (until she gets another, comparable position), emotional distress, punitive damages, costs and attorney's fees.

Not only does this serve to compensate an employee who is forced to go through such an ordeal, but it also acts as a deterrent because employers would expect to be sued if this happened.

Ron Paul's View

Apparently Ron Paul believes that in this example the employee has the "right" to quit on the spot and no longer provide services to the employer. However, the employer also has the "right" to demand sex from his employees and terminate them if they do not comply.

The employee is forced to choose between food, shelter and healthcare for her children and being degraded at the hands of her employer. At the instant she makes her decision the "right" decision is far from clear.

This type of scene already plays out far too often in the United States, but imagine if employers had absolutely no liability for taking these sorts of actions.

Conclusion

Sexual harassment laws were passed in large part to deal with the extreme difference in power between employers and their employees.

Employers can make their employees do virtually anything they want within the boundaries of the law, but society has decided that employees should not be forced to choose between being a sex slave and surviving financially or professionally.

Does Ron Paul seriously believe that employees should be forced to make this decision and employers who force them to should not suffer any consequences? If so, do the 10% of people voting for him the primaries agree with him on this?

Let me first say that I rarely disagree with decisions by California state or federal appellate courts (at least those I am not personally involved in and therefore biased towards). However, I occasionally come across a case where I just think the court got it wrong.

In Mokler v. County of Orange, et.al. (Cal.App.Dist.4 11/26/2007), No. G036029, a former Orange County employee sued under several different claims, including sexual harassment of her by a county supervisor. While I agree with the court's decision on most of the issues presented by the case, I do disagree on their sexual harassment analysis and decision.

The Facts of the Case

Without going into too much detail, Ms. Mokler had to interact with Orange County Supervisors "on almost a daily basis" as part of her job duties, including Supervisor Chris Norby. Mokler introduced herself to Norby at a budget hearing in 2003 and he promptly asked her if she was married. When she said no, he called her an "aging nun". Mokler reported the incident to her supervisor, but he did nothing about it and actually told Mokler to "be careful".

Mokler next encountered Norby at a hotel where a political event was being held. Norby took her arm, pressed her body up against his and said "in a flirtatious manner: 'Did you come here to lobby me?'" Mokler responded that she was not there to lobby him and he asked "Why not? These women are lobbying me," gesturing to two women standing next to him. Norby continued to hold her body up against his, looked her up and down, and told her she had "a nice suit and nice legs". Mokler was finally able to push her self away from him and again went to her supervisor who again told her to "be careful" and further suggested she "needed 'to win him over'".

Mokler's final encounter with Norby occurred in his office. When she arrived, he put his arm around her and told her she looked "nice". He walked over to a large map on the wall and asked her where she lived. When she hesitated, he "demanded she provide her exact address." He put his arm around Mokler again and rubbed her breast with his arm until she pushed herself away from him and apparently a male co-worker interrupted them.

The Trial Court's Decision

The jury found in Mokler's favor on her sexual harassment claim against Norby, but awarded no damages to her for the claim. While uncommon, this does occur where an employee suffers no economic damages as a direct result of the harassment and they are unable to prove any emotional distress or other special damages. However, the trial court ultimately "entered judgment on this claim against Norby, but nonetheless declared him the 'prevailing party' and awarded costs in his favor."

In California sexual harassment cases, the "prevailing party" is entitled to attorney's fees and costs, but I am still scratching my head on how Norby had a judgment entered against him and is still considered to have "prevailed".

The only reason for this I can come up with is that there as an offer made under California Code of Civil Procedure 998.  Under that statute, if a party offers to settle for a set amount, the offer is rejected, and then the other party gets less than was originally offered to them, the opposing party can get their costs reimbursed.  However, this is not mentioned anywhere in the opinion and there are several reasons why even this does not make sense as a reason.  But this is not the point of the post, so I will let it go...

The County appealed several of the trial court's rulings, including the finding of sexual harassment by Norby for creating a "hostile work environment".

The Appellate Court's Decision

The appellate court reversed the trial court's decision, finding that no hostile work environment was created by Norby. The court ruled that Norby's conduct was not "severe or pervasive" enough to justify the trial court's finding that sexual harassment occurred.

It is extremely rare to find a case where both the jury and the trial court found that sexual harassment occurred and the appellate court reverses that decision. In almost all cases that are reversed like this, it is usually very clear that sexual harassment did not occur and the jury got it wrong. I would submit to you that in this case the jury was right and the appellate court was in error.

The appellate court based its decision on a number of factors, including their findings that the incidents "involved no physical threats," "the touching...was brief and did not constitute an extreme act of harassment," and the demand for her address was "brazen," but "[did not create]...a hostile work environment."

To me, if a manager rubs a subordinate's breast, this does constitute "an extreme act of harassment". This is sexual assault, plain and simple, which is punishable as a crime in California! How this conduct could ever not qualify as "severe" or "extreme" is beyond me. Further,holding her body up against his and telling her she has nice legs also borders on extreme.

The court suggests that no "physical threats" occurred. However, when a supervisor grabs an employee's breast after demanding to know where she lives and getting no response, to me this certainly does qualify as a "physical threat".

Additionally, while it is unclear whether Mokler brought her sexual harassment claim against just Norby or against Orange County as well, I believe the county should have liability here. When Mokler complained to her supervisor about Norby's conduct, he simply told her to "be careful" and that she "needed to win him over." I do not know whether these remarks were intended to suggest that she go along with Norby's behavior or if this was a veiled threat against her for complaining, but the way the court's opinion reads it seems the county did absolutely nothing to stop Norby's conduct and possibly tried to stop her from bringing it up.

This is simply one man's opinion, but I call them like I see them and to me this case was decided incorrectly by the appellate court. I do not know if Mokler plans to file an appeal, but I would be very interested to see what the California Supreme Court would decide after reviewing the case.

Employers could avoid a LOT of lawsuits if they would just follow the "No Bad Apples Rule", which has its origins in a book written by Dr. Robert Sutton called "The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't". Although I agree with Dr. Sutton that "bad apples" probably is not a strong enough word, to be politically correct I will use this less offensive term.

The basic premise of this rule is that employers refuse to allow employees who are disruptive, excessively arrogant, rude or downright mean to work in their company. Often these employees are kept around because they are the top salesperson in the office or some other performance-based reason.

However, the book focuses on the reality that no matter how productive these employees are, it is usually not worth keeping them around when you consider the havoc they wreak on workplace morale, the performance of others and the potential for lawsuits against the employer later on.

It is very common when talking to prospective clients that they actually loved their job before Mr. X was hired and turned the office into a combat zone. Regarding their manager's reaction to these problem employees, these clients often tell me things like "my supervisor ignored it" or "my manager was oblivious to it".

An employer is especially in trouble if the a--hole is white (or male, young, straight, etc.) and those complaining are black (or female, older, gay, etc.). In California, this is usually enough for the employee to bring a "hostile work environment" harassment claim and often prevail.

If employers would simply communicate more with their employees, be cognizant of sharp drops in morale, and do something about these problem employees when they are discovered, they could avoid an awful lot of lawsuits by jaded and disgruntled employees.

Special thanks to the Workplace Fairness blog, where I first discovered this book.

Additionally, Diane Levine mentions a study at her Online Guide to Mediation blog, that comes to a similar conclusion about "bad apples".