California: Doctor May Sue Partnership for Retaliation

A physician-partner in a medical practice may pursue a claim for retaliation, but not discrimination or harassment, under the California anti-discrimination laws.

In Fitzsimons v. California Emergency Physicians Med. Group, Ms. Fitzsimons was a doctor and partner in the defendant medical group.  She was also a regional director and on the Board.  She reported sexual harassment by some officers and agents of the medical group.  She was thereafter removed from her position as Regional Director but continued to work as a physician.  She sued for retaliation under California state law.

The Court found that the statute’s plain language prohibited partnerships from retaliating against “any person.”  While the medical practice was not Ms. Fitzsimons’ employer, it was the employer of the harassed employees.  Ms. Fitzsimons could therefore bring her retaliation claim.  The Court noted that Ms. Fitzsimons could not assert a discrimination claim against the medical practice because it was not her employer.

Connecticut Says Yes to Sexual Orientation Harassment Protection

The Connecticut Supreme Court unanimously decided that Connecticut employers have a duty to protect employees from harassment based on sexual orientation under state law.

In Patino v. Birken Manufacturing Co., Mr. Patino alleged approximately 10 years of harassment based on his sexual orientation.  He was subjected to derogatory slurs about homosexuals either directed toward him or made in his presence.  Mr. Patino complained many times.  Notwithstanding his complaints, Mr. Patino was still subjected to the harassment.  He recorded the harassment in personal journals that were later used as evidence.  He filed suit pursuant to Connecticut state law, alleging that he was subjected to a hostile work environment.

Finding that the state legislature intended to permit hostile work environment claims for employees subjected to sexual orientation discrimination, the Connecticut Supreme Court upheld the verdict for Mr. Patino.           

No Harassment Claim Based on Sexual Orientation

A male employee subjected to repeated harassment based on his sexual orientation was not entitled to bring a Title VII claim against his employer, according to the Sixth Circuit.

The male supervisor made derogatory comments about the employee such as: suggesting that he looked like a girl, that he should change his name to a girl’s name and said that the employee had sex with dead people.  The employee filed suit claiming that he had been sexually harassed.

The Court stated that the plaintiff had to show that, but for his gender, he would not have been the object of harassment.   To establish same sex harassment, the plaintiff had to show that the harasser made sexual advances or was motivated by a general hostility toward men in the workplace.  The Court found that the harasser’s conduct was horrible and bullying but there was no evidence that it was based on the plaintiff’s sex.  He treated all employees poorly.   On a final note, the Court held that sexual orientation harassment is not currently actionable under Title VII. 

The Eastern District of New York made a similar finding this week but did find some Title VII protection for these harassed employees.   Should these harassed employees complain, the complaints are protected activity and may form the basis of a retaliation claim under Title VII.

Securities Compliance Officer Not An Exception to New York At-Will Employment

A compliance officer who claimed he was fired for questioning the stock trades of the company president may not bring a claim for wrongful discharge.

In Sullivan v. Hamisch, Mr. Sullivan analogized his position to that of an attorney.  Attorneys who protest their firm’s noncompliance with professional ethical requirements fall within an exception to the rule that employment is generally at will.  Mr. Sullivan asserted that the legal and ethical duties of a securities firm are similar.

The New York Court of Appeals rejected this argument, finding among other things, that federal regulations in the securities business were insufficient to support an alteration of the at will employer employee relationship.

Navigating the World of Human Resource Consulting

                                   EmploymentSource™ Newsletter May Edition 2012 Edition

Lisa D. Baer, SPHR
Dallas, Texas

lbaer@epspros.com

Southwest Region

The economic conditions of the last several years have taken their toll on the budgets of corporate America – especially the budgets of non-revenue producing areas of the corporate world such as Human Resources. HR departments are increasingly asked to do more with less and are doing so in the face of increasing regulatory pressures while supporting a workforce that is changing and experiencing new levels of stress itself. As organizations struggle to maintain productivity and profitability with smaller workforces, making the best use of those limited resources requires creativity and resourcefulness. Often the resources and expertise needed to accomplish the goals of an organization are simply not available internally and using an outside consultant is necessary.

The selection of any external consultant can be a challenging process and this is particularly true for human resource functions. The years of streamlining within HR organizations have driven a large number of HR practitioners into the consulting business. The bar for entry in the world of HR consulting, an $18.5 billion dollar business, is relatively low. HR consulting services are provided by large multinational corporate giants, small boutique firms that specialize in specific services (training, investigations, and organizational development for example) and a host of individual consultants that provide a wide variety of services.

The variety and price range of services provided by HR consulting firms varies greatly, and their marketing is often difficult to comprehend even though there is an abundance of it - a quick Google search for “human resource consulting” yields 25 million results! How can you determine if a particular consultant or firm is going to solve your pressing problem? Do they really understand your objectives, industry and culture? Do they have a successful track record of providing the service successfully to other similar clients?  Can they meet your deadline? Can they be trusted? Would it be more effective to stretch skills and resources and provide the service in-house?  Will the need be an on-going one or is it short term or process related?

While navigating the human resource consulting world can be challenging, there are concrete steps you can take to ensure that your search for the right consultant or firm to address your specific need is successful.

• Assess the need for a third party Not every problem requires outside expertise. The issues that human resource organizations face, however, are often perfect candidates for outside assistance.  For instance, you may have day-to-day line management of your HR staff completely under control, but need help rallying your operation’s supervisors to become better motivators. How do you address that challenge? Can you articulate why a third party is needed and quantify the cost/benefit analysis?  In this case, you may be seeking the breadth of experience brought by a consultant with hundreds of clients who have faced similar challenges. You might choose to use a third party to deliver compliance-related training to bring perspective and credibility to the topic that an outsider often provides – sexual harassment training for instance. Likewise, while you may conduct 95% of your misconduct investigations in-house, if your executive vice president of HR is the accused, you may find it beneficial to bring in an outside investigator for neutrality, objectivity and with an eye to potential future litigation. Understanding why you are searching for a consultant is as important as knowing the specifics of the objective. The “why” often drives the choice of consultant and will assist you in narrowing the candidates significantly. 

• Clarify your objective. Whether you are sorting out the specifics of a number of employee benefit options or trying to train every member of a 15,000 person staff on the intricacies and subtleties of the principles of diversity during a two week time period, understanding your intended outcome is imperative. Fuzzy objectives or objectives that change mid-stream will not only frustrate a potential service provider (and waste your time and money), but decrease the likelihood of success. Clear goals and objectives will allow you to communicate effectively and with specificity with potential vendors. In turn, clarity will help vendors provide you with better information regarding their services and their ability to meet your objectives and provide accurate estimates regarding the cost of their services. 

• Know your budget. The cost of HR consulting services can vary tremendously. Before you begin to explore alternatives, know your budget. Armed with common sense and concrete figures, you are better prepared to request and sort through proposals and quotes. Communicate with your vendors openly about the price range you believe is fair as those parameters will often weed out consultants who are unable to work within your budget. At times, your estimated budget may not reflect the market cost for the services you need and in those circumstances it is especially important to be realistic about your goals and what a consultant can accomplish within your budgetary constraints. Budgetary frankness allows the vendor to be realistic about what they can provide and assist you in understanding what can be accomplished within the constraints – monetary or otherwise – that you provide. Additionally, your flexibility with how the services are delivered may overcome budgetary obstacles. For instance, a limited training budget may require shorter classes or more employees per class, utilizing webcasts or on-line training instead of live training. You may be able to rely on licensed materials taught by in-house personnel. Once informed of your parameters, many consulting companies will do their best to meet your needs while accommodating your budget; however, this is impossible to do without the required information regarding your budget expectations. Again, communication with a prospective vendor is crucial to meeting your organization’s needs.

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Employee’s Heart Condition Found to be Direct Threat To Safety

Employee with symptomatic heart condition and workplace with widespread use of heavy machinery will not receive ADA protection.

In Wurzel v. Whirlpool Corp (6^th Circuit), Mr. Wurzel was a factory worker.  After twenty years of employment, he developed heart problems.  Although cleared to work by his physician, Mr. Wurzel experienced severe chest pains and spasms on many occasions.  He repeatedly required treatment in the plant’s medical emergency room.  The employer became concerned about problems should these attacks occur while Mr. Wurtzel was operating heavy machinery, such as a forklift.  He was transferred to a different position where he would not be using the forklift.  As Mr. Wurzel continued to experience spasms, the employer hired an independent medical examiner to evaluate the situation.  This examiner found that Mr. Wurzel should not be permitted to work alone or near moving machinery.  Mr. Wurzel went on an extended sick leave.

Mr. Wurzel filed suit under the Americans with Disabilities Act.  The Sixth Circuit Court of Appeal affirmed for the employer.  Mr. Wurzel posed a direct threat to workplace safety, which is an exception to employer liability under the ADA.  Whirlpool had made an objective decision regarding Mr. Wurzel’s job related abilities based on a non-discriminatory evaluation process.

Is it Gender Discrimination? Female Reporter Fired for Stripping

Sarah Tressler was a recently hired reporter for the Houston Chronicle.  Ms. Tressler covered fashion and society for the newspaper.  On the side, she also wrote a blog called “Diary of an Angry Stripper.”   This blog was discovered by another publication and disclosed publicly.  Ms. Tressler alleges she was thereafter terminated; the reason was failure to disclose her part-time work as an exotic dancer on her job application.

Ms. Tressler asserts that the termination is discriminatory.  Most exotic dancers are female.   Terminating employees for being exotic dancer would have an adverse impact on women.