Transcript WORKPLACE ROMANCES

AASHTO HUMAN RESOURCES SUBCOMMITTEE
MEETING
LITTLE ROCK, ARKANSAS
May 8, 2012
SEX, DRUGS, AND ROCK &
ROLL
Carolyn B. Witherspoon
Cross Gunter Witherspoon & Galchus, P.C.
500 President Clinton Ave., Suite 200
Little Rock, AR 72201
[email protected]
(501) 371-9999 / Fax: (501) 371-0035
Sexting in the Workplace
2
Sexting
3
 What
is sexting?
 Sexting
is the act of sending sexually explicit messages or
photographs through text messages via mobile phones.
Sexting
4
A 2009 survey revealed
approximately 4.1 billion texts are
transmitted in the U.S. every day.
 Since then, this number is suspected
to have risen to over 5 billion texts
per day.
 Three-fourths of corporate
employees today use smart phones.

Sexting and Cell Phone Privacy
5

Whose phone is it, anyway?
 When
public employers provide employees with cell
phones and similar devices, employees are left to
wonder whose phone it really is.
 Generally, the more the employee pays for the phone,
the more likely a court is to rule that the phone is in that
employee’s control.
 Similarly, the more exclusive the employee’s access is
(particularly to the employer), the more likely it is to be
considered in the employee’s possession, even if the
employer is paying a portion of the bill.
Privacy Issues
6

O’Connor v. Ortega (1987)
 Dr.
Ortega had been the head of the psychiatric
residency program at Napa State Hospital, a mental
hospital, for 17 years. He bought a new Apple
computer to use at work. He paid for half of the cost,
and the other half had been donated by some of the
residents
 A month later, Ortega asked Dr. Dennis O'Connor, his
boss, to sign some thank-you letters to the residents who
had made contributions.
Privacy Issues
7

O’Connor v. Ortega (1987)
 Two
months later, Ortega suspended a resident for
missing a rotation. The resident claimed Ortega was
retaliating against him for not having contributed to the
computer’s purchase.
 An investigation was opened, and Ortega’s office was
searched thoroughly, with personal belongings being
found and kept.
 Ortega was put on administrative leave and later
fired. He sued. The district court found that the search
of his office was reasonable, because it was
“inventoried,” not searched.
Privacy Issues
8

O’Connor v. Ortega (1987)
 The
appellate court reversed, stating that “the entry
into the office seems to have been for no other purpose
than to secure evidence for use in the ongoing
investigation of Ortega.“
 The Supreme Court reversed the appellate court’s
decision. The court stated: "Individuals do not lose
Fourth Amendment rights merely because they work for
the government, instead of a private employer."
Privacy Issues
9

O’Connor v. Ortega (1987)
The U.S. Supreme Court based employee privacy
rights on the “operational realities of the workplace.”
The Court required a balancing of the employee's
“legitimate expectation of privacy against the
government's need for supervision, control, and the
efficient operation of the workplace.”
 The Court did not, however, focus on electronic sources,
but instead mentioned the employee's office, desk, or
file cabinets.

Privacy Issues
10

O’Connor v. Ortega (1987)
This opinion vested a large amount of discretion in
government employers, where written policies dictated
standards of privacy.
 A government employer’s warrantless search is
reasonable if it is “justified at its inception” and if “the
measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in
light of” the circumstances

Searches by the Employer
11

From Ortega to Quon


As mentioned, the Ortega Court did not, however, focus on
electronic sources, but instead mentioned the employee's office,
desk, or file cabinets.
City of Ontario v. Quon (2011)


Jeff Quon was a police sergeant and member of the SWAT
Team for the Ontario Police Department. The city issued
pagers to SWAT team members for work usage.
The computer policy that stated that the city had the right to
“monitor and log all network activity… with or without notice”
was applied to the pagers.
Searches by the Employer
12

City of Ontario v. Quon



Quon’s supervisor told him he did not plan to audit employees’
text messages, so long as they paid personally for any
overage charges for personal use, which Quon did.
When reviewing the usage amount, Quon’s supervisor saw that
Quon had been sending sexually explicit messages to his wife
and another officer.
The Supreme Court considered whether the city’s review of
Quon’s text message transcripts was an unreasonable search
violating his expectation of privacy.
Searches by the Employer
13

City of Ontario v. Quon


The Supreme Court stated that the Fourth Amendment applies
when the government acts in its capacity as an employer, which
protects the “privacy, dignity, and security of persons against
certain arbitrary and invasive acts by officers of the
Government.”
The Court ruled that the classic two-part test to determine
whether the government, as an employer, has conducted an
unlawful search will still be used.
Searches by the Employer
14

City of Ontario v. Quon


First, the Court considers the “operational realities” of the
workplace to determine whether an employee’s Fourth
Amendment rights are implicated.
Second, where the employee has a legitimate privacy
interest, an employer’s intrusion on that expectation for “noninvestigatory, work-related purposes, as well as for
investigations of work-related conduct,” will be judged by a
reasonableness standard, in light of all the circumstances.
Searches by the Employer
15

City of Ontario v. Quon


The Court ruled that, because the computer policy stated
clearly that audits may occur, the search was not
unreasonable.
Because the search was reasonable, petitioners did not
violate respondents' Fourth Amendment rights, and the court
below erred by concluding otherwise. The judgment of the
Court of Appeals for the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with this
opinion.
Today’s Standard
16

What government employers should do:
 1)
Post and/or include in handbook a clear policy
regarding all technology usage.
 2) Include in the policy that all technology issued by the
government/employer is subject to review/audits,
including all content therein. This includes phones,
computers, PDA’s, etc.
 3) Make it clear that the policy applies to all devices
for which the employer pays, even if the employee
pays for part of the usage.
Don’t Be a Nutt
17

Public employee records may be
subject to FOIA requests.
 Cell
phone records of Houston Nutt,
the former University of Arkanas
head football coach, were
requested from a fan, who
questioned some of Nutt’s recent
communications with boosters.
 Transcripts of text messages were
viewed and released to the public.
ROMANCE
7
WORKPLACE ROMANCES
19

Why People Engage in Workplace
Romances
 Long
hours people spend at work.
 Work is a non-threatening environment where
people meet potential dating partners and
learn more about them.
WORKPLACE ROMANCES
20

Why People Engage in Workplace
Romances
 When
the romance flourishes, those in the
relationship are “happy.”
 When partners work for the same employer,
each has someone to talk to about their
problems at work because the other
understands and can help resolve issues.
WORKPLACE ROMANCES
21

Almost Everyone is Doing It!!
59%
of employees have participated in an
office romance
65% of employees reported that the shaky
economy has no effect on their willingness
to take romantic risks at work
1/3 of those who have had office romances
have engaged in workplace trysts.
Source: 2011 Office Romance Survey by Vault, Inc.
WORKPLACE ROMANCES
22

Dangers of Workplace Romance
WORKPLACE ROMANCES
23

Dangers of Workplace Romance
1.
2.
3.
Loss of attention to work.
Jealousy among co-workers.
Potential for antagonism between the
individuals if a break up occurs.
WORKPLACE ROMANCES
24

Legal Challenges
 Sexual
Harassment (Quid Pro Quo) Claims
 Retaliation Claims
 Hostile Work Environment Claims
 Invasion of Privacy and Wrongful
Termination Claims
 Intentional Infliction of Emotional Distress
 Assault and Battery
WORKPLACE ROMANCES
25

Sexual Harassment (Quid Pro Quo)
Claims
 After
a supervisor ends a relationship with a
subordinate, the subordinate will sometimes
assert an after-the-fact sexual harassment claim.
 Usually, the subordinate contends he or she was
coerced into the relationship and employment or
various prerequisites of employment were
conditioned upon the exchange of sexual favors.
WORKPLACE ROMANCES
26

Retaliation Claims
 When
a subordinate ends a relationship with
a supervisor, the supervisor may be accused
of retaliation if the subordinate suffers any
adverse employment action.
WORKPLACE ROMANCES
27

Hostile Work Environment
 Typically
occurs where a combination of
sexual comments, jokes, etc. take place
between the couple prior to the relationship
dissolving.
 Other employees who witness the office
romance may also feel slighted and raise
such a claim – must be widespread
favoritism.
WORKPLACE ROMANCES
28

Hostile Work Environment

Faragher v. City of Boca Raton, 524 U.S. 775
(1998)
 The
Supreme Court held that in order to be
actionable under Title VII, the sexual harassment
must be so severe and pervasive that it alters the
conditions of the victim’s employment and creates
an abusive working environment.
WORKPLACE ROMANCES
29

Faragher v. City of Boca Raton
 The
Court noted that a sexually objectionable
environment must be:
 Both
objectively and subjectively offensive,
 One that a reasonable person would find hostile or
abusive, and
 One that the victim in fact did perceive to be so.
WORKPLACE ROMANCES
30

Faragher v. City of Boca Raton
 Courts
are directed to determine whether an
environment is sufficiently hostile or abusive by
looking at all the circumstances, including:
 The
frequency of the discriminatory conduct;
 The severity of the discriminatory conduct;
 Whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and
 Whether the conduct unreasonably interferes with an
employee's work performance.
WORKPLACE ROMANCES
31

Faragher v. City of Boca Raton

An employer may be indirectly liable for sexual
harassment by a superior if:
 (1)
the harassment occurs within the scope of the superior’s
employment;
 (2) the employer assigns performance of a non-delegable
duty to a supervisor and an employee is injured because
of the supervisor’s failure to carry out that duty; or
 (3) there is an agency relationship which aids the
supervisor’s ability or opportunity to harass.
WORKPLACE ROMANCES
32

Invasion of Privacy & Wrongful
Termination Claims
 When
employers penalize employees for
dating, the affected employees may be able
to assert an invasion of privacy claim.
WORKPLACE ROMANCES
33

Intentional Infliction of Emotional
Distress (IIED)
 Elements
 (1)
defendant acted intentionally or recklessly;
 (2) defendant’s conduct was extreme and outrageous;
 (3) causation
 (4) resulting in severe emotional distress
A
claim for IIED can be brought against an
individual supervisor.
WORKPLACE ROMANCES
34

IIED - Hess v. Treece, 286 Ark. 434 (1985)
Appellee Mark Treece had been an employee of the Little
Rock Police Department since 1973. In late 1980 he met
appellant Bob Hess when he dropped off Jayma
Stephens, Hess' girlfriend, at Hess' house and some
unfriendly words were exchanged between the parties.
 Treece testified that in April 1981 he saw Hess following
him. In Spring 1982, Treece was informed by one of his
superior officers, Capt. Timothy Daley, that Hess had
called the Police Department to complain about Treece
being at his apartment when he was supposed to be at
work.

WORKPLACE ROMANCES
35

Hess v. Treece
 During
this conversation, according to Daley, Hess stated
that he would have Treece's job at any cost, and that he
was conducting surveillance of Treece and other officers.
An internal police investigation of this complaint found
Treece innocent of the charges.
 In April 1982 Treece talked to Hess' bookkeeper. She
told Treece that Hess had asked her to watch and
report on Treece's movements.
WORKPLACE ROMANCES
36

Hess v. Treece
 The
court stated, “The fact that appellee happened to
be a city employee should not deprive him of protection
from outrageous conduct, nor should the fact that
appellant happened to be a City Director relieve him of
responsibility for his actions.”
 The Arkansas Supreme Court upheld the lower court’s
ruling in favor of Treece, finding substantial evidence to
support the verdict of outrageous conduct and also to
support the award of damages, both compensatory and
punitive.
WORKPLACE ROMANCES
37

Assault & Battery
 Elements
of Assault:
 (1)
an act intended to cause apprehension of harmful or
offensive contact
 (2) that does cause apprehension of such contact in the
victim
 Elements
of Battery:
 (1)
an intent to cause harmful or offensive contact
 (2) and harmful or offensive contact to the plaintiff
 Claims
for assault & battery can be brought against
an individual supervisor.
WORKPLACE ROMANCES
38

Employer approaches to protect
against the legal impact of
workplace relationships:
 “Love
Contracts”
 No-Fraternization Policies
WORKPLACE ROMANCES
39

No-Fraternization Policies
 What
does it mean to fraternize?
 When
office.
two people have a relationship within the
WORKPLACE ROMANCES
40

No-Fraternization Policies
 First
Type
 Prohibits
supervisory employees from dating
non-management employees.
 Rationale
– the disparity of power between the two
could be viewed as creating a situation where the
employee was under duress to enter into or stay in the
relationship.
WORKPLACE ROMANCES
41

No-Fraternization Policies
 Second
type –Prohibits supervisors from
dating any employees, but allows nonsupervisory employees to date each other.
 Third
type –Prohibits any dating in the
workplace (strict policy).
WORKPLACE ROMANCES
42
No-Fraternization Policies vs.
Employee Privacy
WORKPLACE ROMANCES
43
What kind of policy is right for you?
WORKPLACE ROMANCES
44

Advantages of NOT having a NoFraternization Policy
 Allows
management flexibility in establishing
corporate culture and letting it change as the
firm may experience a fluctuation of
employees within the firm.
 Company can still address harassment issues
through its anti-harassment policy.
WORKPLACE ROMANCES
45

Disadvantages of NOT having a nofraternization policy
 Employees
may not be on notice as to what kinds of
behavior are prohibited, thus providing an opening
for an invasion of privacy argument.
 Employer does not have the strong evidence that the
consistent enforcement of a no-fraternization policy,
which goes over and above a policy merely
prohibiting harassment and discrimination, provides
in court.
Social Networking
46
Social Networking
47

Types of Social Networking:
 Forums
 Blogs
 Micro-blogging
 Photo
(e.g. Twitter)
Sharing
 Video Sharing
 Professional (e.g. LinkedIn)
 Purely Social (e.g. Facebook)
 Bookmarking
Social Networking
48

Trends
 Time
Americans spent surfing Facebook:
 August
2010 - 41.1 million minutes
 August 2009 - 20.8 million minutes
 Largest
 Ages
growing demographic on Facebook:
35 and older
http://www.allfacebook.com/facebook-surpasses-google-in-time-spent-on-sitedomestically-2010-09
Big Four of Social Media
http://www.getbusymedia.com/the-social-media-download-the-big-four/
Social Media – Why People Use It
Keeping in touch
 Networking
 Sharing and acquiring information
 Meeting new people
 Winning prizes

Social Networking
51

Statistics – Comments on Employers - Issues
 17%
disciplined employees for violating blog or
message board policies
 15% disciplined employees for violating multimedia
sharing/posting policies
 13% investigated an incident involving mobile or webbased short message services
 8% discharged employees for behavior on social
networking sites
http://www.proofpoint.com/news-and-events/press-releases/proofpoint-survey-says-state-of-economy-leads-toincreased-data-loss-risk-for-large-companies?PressReleaseID=245
Social Networking
52

What is a Blog?
 An
online journal
 Can contain anything the author wishes to
publish
 Potential Risks/Downside:
 Invasion
of Privacy
 Defamation
 Sexual Harassment
 Productivity Drains & Economic Damage
Social Networking
53

Blog Risks to Employers
 May
be held accountable for employee posts
about products/services if misleading
 Knowledge of discriminatory or harassing
content may expose employer to liability
 Employers have not yet been held liable for
employee blog content
 However,
liability has been imposed for
employee email & internet conduct.
Social Networking
54

Blog Risks for Employers
 FTC
endorsement guidelines require that
bloggers discussing or reviewing products &
services must disclose any connection
between blogger and maker of the product
 Employers can be held liable for permitting
a hostile work environment based on what
employees say online. Blakely v. Continental
Airlines, 164 N.J. 38 (2000).
Social Networking
55

What is Twitter?
A
free blogging service that lets users post
short answers, known as “tweets,” to the
question: What are you doing?
 Risks
 Tweets
create the same risk issues that blogs in
general create
 Because they are instantaneous messages, they
are generally not well thought-out, creating more
potential for poor judgment.
Social Networking
56

What is Twitter?
Social Networking
57

What is “pure” Social Networking?
 Sites
purely for allowing users to stay in touch with
people whom they know.
 Best examples are Facebook and MySpace
 Potential Risks (between employees and
employees/employers)
 Defamation
 Invasion of Privacy
 Sexual Harassment
Social Networking
58

Defamation
A
false statement
 Publication
 To a third party
 That causes damages to the person defamed
 Defense: Truth
Social Networking
59

Invasion of Privacy
 Appropriation
of name or likeness
 Publicity given to private life
 Matter
publicized would be highly offensive to a
reasonable person AND
 Is not of a legitimate concern to the public
 Publicity
placing a person in a false light
Social Networking
60

Sexual Harassment – Examples:
 Sending
explicit pictures
 Having explicit pictures on social network site
 “Sexting”
Social Networking
61

Urban Dictionary: Dooced – to lose
one’s job because of one’s website
Social Networking
62

Examples quoted in the media of
people who lost their jobs because of
Social Networking Posts:
Social Networking
63
Social Networking
64

Philadelphia Eagles Gate Keeper
 Upset
that Eagles let free agent Brian
Dawkins sign with Denver Broncos
 Fired after 6 years on job for Facebook
post: “Damn Eagles R Retarded!!”
Harassment via Facebook

A Texas teacher was terminated this spring for using
Facebook to harass a fellow teacher.
 Set
up a fake Facebook account for the other teacher
and disclosed the teacher’s financial information,
photograph and address.
Bogus Absences
Bank intern requested
time off in late
October for a “family
emergency.” That
night, this photo
surfaced on
Facebook. The intern
was terminated.
How Does Social Media Affect
Businesses?
CAN I LOOK A JOB APPLICANT UP ON
FACEBOOK/LINKED IN/SOCIAL MEDIA
UNIVERSE?
Risks of Searching Social Media:
Inaccurate Information

There is no guarantee that information obtained
from a social networking site is accurate.
 Individuals
have had their pictures stolen from social
networking sites and uploaded to fake social
networking profiles.

Inaccurate information could lead to poor
employment decisions.
Risks of Searching Social Media:
Fair Credit Reporting Act

Fair Credit Reporting Act (“FCRA”)
Enacted to ensure that information used to make
decisions about consumers is accurate
 Requires an employer to give an applicant written notice
and obtain permission before obtaining a consumer
report on the applicant
 Social networking sites allow employers to gain a wealth
of information without providing applicants with the
required written notice or permission.

Risks of Searching Social Media:
Terms of Service Violations

Virtually all social networking sites include a
“Non-Commercial Use” clause.
 Researching
individuals for the purposes of
employment decision-making would violate this
clause.
Technology Policies Can Protect Employers

Employers may be able to reduce the risk of liability
for workplace technology use by keeping tabs on how
employees are using their computers, email, and other
electronic communications at work.
71
Technology Policies Can Protect
Employers

Companies should enact a comprehensive internet,
email, and phone-use policies which addresses the
proper use of the systems and the potential for the
monitoring of electronic communications
 Stay
on top of how employer’s duties and obligations
are affected by new technology
 New online technologies and trends in use by
employees must be addressed by broad policies
72
Technology Policies

Make sure technology policies address the following
issues:
 Monitoring
of employees – when & how
 Company property – identify & define
 What
is appropriate use of company property?
 What is prohibited use of company property?
 What personal use of company property is allowed?
 “For business only” purposes are difficult to enforce
73
Technology Policies

Make sure technology policies address the following
issues:
 Electronic
devices used to communicate or transmit
information
 Unauthorized
internal or external communication of
confidential or proprietary information should be prohibited
 Expectations
 Make
of privacy
it clear that employees should expect none
74
Technology Policies

Don’t assume employees have knowledge of what
content and conduct is appropriate
 Make
policies CLEAR.
 It is easier to discipline for improper use.
 Exempt protected concerted activities.
75
Social Networking
76

Creating a Policy that Works
A
good policy
 Protects
trade secrets
 Addresses customer, employer & employee privacy
Social Networking
 Draft
policies carefully to insure against
discrimination or harassment cases
a policy that works
 Inappropriate, harassing, offensive, defamatory
or discriminatory content in any electronic
communication, personal or business-related,
should be prohibited
 Creating
 Prohibit
specific actions, such as sending offensive
materials or storing or accessing them
77
Social Networking
78

Creating a Policy that Works
 Topics covered:
 Use
of Company resources for personal business
 Company policies apply online
 Unauthorized use of Company name and
trademarks, logos, etc.
 Inappropriate disclosures
 Inappropriate comments not otherwise legally
protected
Social Networking
79

Creating a Policy that Works
 Avoiding
an “overly broad” policy:
 Remember
that employees have a right to share information
regarding working conditions
 Employees can be prohibited from using company logos or
trademarks and from posting disparaging information about
company products and services
 Employees should be prohibited from violating EEO/harassment
laws.
 Employees should provide a disclaimer that the opinions are their
own and not those of the company.
Social Networking

Companies should distribute copies of the
policy to all employees and require written
acknowledgement and consent to the policy
 Obtain consent prior to monitoring
 Always insure employees have been directly
informed of Company policy
Place a message on your computer system’s
“splash screen” about privacy rights
80
81
COPING WITH EMPLOYEE DRUG USE
Recreational and Prescription Drugs
Coping with Employee Drug Use
82

Direct Cost of Drug Abuse to U.S.
Industry
 $85
billion per year
 Including lost time, reduced productivity, lost
employment, injuries and crime
Source: Metropolitan Life Insurance Company
Coping with Employee Drug Use
83

According to the National Survey
on Drug Use & Health…
 Of
the estimated 19.3 million illicit drug
users aged 18 or older in 2009, 12.9 million
(66.6 %) were employed either full or part
time.
Coping with Employee Drug Use
84

Prescription Drug Abuse – What is
it?
 Use
of prescription pain relievers,
tranquilizers, stimulants or sedatives without a
prescription simply for the feeling the drug
causes.
Coping with Employee Drug Use
85

Among persons aged 12 or older in 2008-2009 who used
pain relievers non-medically in the previous12 months:





55.3% got the drug from a friend or relative for free;
Another 17.6% reported they got the drug from one doctor;
Only 4.8% got pain relievers from a drug dealer or other
stranger; and
0.4% bought them on the Internet.
In 2009, 7.0 million (2.8%) persons aged 12 or older used
prescription-type psychotherapeutic drugs non-medically in
the previous month.
http://oas.samhsa.gov/NSDUH/2k9NSDUH/2k9Results.htm
Coping with Employee Drug Use
86
Likely Tendencies if you have Employees Who are
Drug Users:






More likely to be involved in an accident and file a
workers’ compensation claim
More likely to quit or get fired
More likely to steal from workplace
More likely to miss work
More likely to be in a confrontation
Less productive
Coping with Employee Drug Use
87

Substance abusers are:
 3.6
times more likely to be involved in a
workplace accident
 5 times more likely to file a workers’
compensation claim
http://www.nyemployeelaw.com/docs/scdefensetopunitivedamagesclaims.pdf
Coping with Employee Drug Use
88
As many as 50% of all workers’ compensation
claims involve substance abuse.
 80% of those injured in “serious” drug-related
accidents at work are not the drug abusing
employees, but are innocent co-workers and
others.

http://www.nyemployeelaw.com/docs/scdefensetopunitivedamagesclaims.pdf
Coping with Employee Drug Use
89
Employer Responses to Problems
Coping with Employee Drug Use
90

Three (3) Choices:
 Ignore
it
 Discipline without drug testing
 Implement Substance Abuse program
involving 1 or 2 elements:
 Drug
Testing
 Rehabilitation
Coping with Employee Drug Use
91

Legal Challenges Employers Face
 Validity
of Tests and Procedures
 Errors
 Chain
of Custody Problems
 Invasion
of Privacy
 Defamation
 Wrongful Termination
Note: Certain states disallow certain types
of tests – e.g., hair or oral fluids.
Coping with Employee Drug Use
92

Americans with Disabilities Act
(ADA) Concerns
 The
EEOC has taken the position that
employers and their designees—physicians,
clinics, third-party administrators—may not
require individuals being tested to indicate,
prior to testing, if the individual is taking any
medications, even if that medication may
produce a positive test result.
Coping with Employee Drug Use
93

Americans with Disabilities Act
(ADA) Concerns
 If
an individual tests positive, the employer,
either by one of its employees or a thirdparty, must determine whether the individual
had a legitimate reason for testing positive.
 The ADA excludes users of illicit drugs and
those who take prescription drugs unlawfully
from its protection.
Drug Testing
94


“Urinalysis required by a government employer for
the purpose of detecting illegal drug use is a search
protected by the Fourth Amendment.” See Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602, 61718 (1989); National Treasury Employees Union v.
Von Raab, 489 U.S. 656, 678-79 (1989).
The Fourth Amendment, however, does not proscribe
all searches; it bars only unreasonable ones.
Drug Testing
95


The permissibility of a particular practice "is judged
by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of
legitimate governmental interests." Skinner, 489
U.S. at 619.
The need for testing must be important enough to
override the individual's privacy interest, sufficiently
vital to suppress the Fourth Amendment's normal
requirement of individualized suspicion. Chandler v.
Miller, 520 U.S. 305 (1997).
Drug Testing
96

Basis of Government Drug Testing
 Government
employees have rights entitling them to
due process protection when faced with discipline or
discharge for drugs.
 The right to be exposed to fair testing policies are
derived from the Constitution as well as from the right
to contract, to engage in the common occupations of
life, and to maintain one's employment and standing
in the community.
Drug Testing
97
What Substantive Rights Do Government Employees
Have?
 In substance the basic drug testing protections are as
follows:
All employees should have notice of drug testing prior to
implementation of or exposure to the testing program.
 All employees should be entitled to test accuracy including
having an initial test confirmed by a method of greater or
equal sensitivity.

Drug Testing
98
What Elements Should all Government Drug Policies
Have Included in Them?
 The following is a list of the required elements of all
government testing policies. Failure to comply with
these elements may result in an invalid policy thus
invalidating test results for due process reasons.
 Statement
of need for substance abuse testing (i.e. for
work standards and health, employee and/or public
safety, workplace security, or the company’s reputation
or public trust)
Drug Testing
99
 Position
statement stating the company's position on
substance abuse
 List of employee rights and the company's
responsibilities to employees. (i.e. Notice of testing,
drugs tested for, due process, and chain of custody)
 Employer's rights such as discharge and discipline for
refusal to take a test or for a positive test result
 Consequences for violating the policy
 Procedures for test administration
 Disclaimer of contract to avoid giving employees
contract rights under the policy.
Drug Testing
100

What Confidentiality Rights do Government
Employees Have to their Testing Results?
All information, interviews, reports, statements,
memoranda, and test results, written or otherwise,
received by the employer or a laboratory through a
substance abuse testing program should be considered
confidential communications.
 Confidentiality procedures not only protect employees,
they protect employers from being sued for defamation
or other torts if an inaccurate test result on an employee
is released.

Coping with Employee Drug Use
101

Recommendations:
 Establish
a policy in compliance with the law.
 Notify employees of said policy.
 Keep confidentiality, to the extent possible,
and notify employees of the same.
 Require that employees acknowledge receipt
of said policy in writing.
102
Regulating Employee Appearance
Weight, Dress, Tattoos & Body Piercings
Tattoos & Body Piercings
103

Recent Survey:
 42
% of workers
have permanent
body art other
than pierced ears
http://www.shrm.org/Publications/HRNews/Pages/CMS_022571.aspx
Tattoos & Body Piercings
104

The “Norm”
 30
years ago, 1 in 100 people in the US had
tattoos.
 Now, 1 in 10 Americans have them, and 1/3
of those aged 25-30 have tattoos.
 While society is becoming more liberated and
expressive, some employers are having a hard
time accepting body art and piercings in the
workplace.
http://www.workingworld.com/articles/Tattoos-and-Piercings-in-the-Workplace
Tattoos & Body Piercings
105

Private vs. Public Sector Employers
Public sector employers must carefully balance if the
employee’s “speech” is a matter of public concern or
pursuant to official duties
 “Speech” that is not a matter of public concern or that is
made pursuant to an official duty is not insulated from
employer discipline.
 Private sector employers’ right to enforce a legitimate dress
code typically trumps the employee’s right to free speech.
 Both public and private employers must not discriminate
against speech on the basis of protected status, e.g., Title VII
protects religious expression.

Tattoos & Body Piercings
106

Protected Speech
 Roberts
 KY
v. Ward, 468 F.3d 963 (6th Cir. 2006)
State Parks Dept. employee filed suit alleging
that his First Amendment rights were violated after
he was terminated for refusing to follow the
Department’s “Professional Appearance Policy,”
which prohibited any visible tattoos and body
piercings—with the exception of ear lobes for
women only.
 The employee was terminated for displaying a
U.S. Navy tattoo.
Tattoos & Body Piercings
107

Protected Speech
 Roberts
v. Ward
 The
court identified two situations when a state
employer’s limitation upon the speech of its
employees can violate the First Amendment:
 Instances
where a public employee speaks out about
some functioning branch of government for which he
works—a matter on which he is “uniquely qualified to
comment” by virtue of his job status AND
 Instances where the speech is unrelated to the job of
the employee and involves matters of public concern.
Tattoos & Body Piercings
108

Protected Speech
 Roberts
 The
v. Ward
employee argued that his tattoo involved a
matter of public concern because it expressed his
“support, loyalty and affection for the U.S. Navy.”
 The court held that the display of the tattoo was not
a matter of public concern and some dress code
limitations are permissible.
Tattoos & Body Piercings
109

Protected Speech
 Riggs
v. City of Fort Worth, 229 F.Supp.2d
572 (N.D. Tex. 2002)
A
Fort Worth police officer with numerous tattoos
on his arms and legs filed suit after he was
transferred from the bike unit and ordered to
wear long sleeves and pants to cover his tattoos.
The officer alleged that he was discriminated
against because of his race (Caucasian), sex
(male), and national origin (Celtic).
Tattoos & Body Piercings
110

Protected Speech
 Riggs
 The
v. City of Fort Worth
Police Department had a dress code that contained
no specific provisions regarding tattoos but required that
“personnel … shall wear such uniform and insignia as the
Chief of Police prescribes.”
 The court held that the tattoos were not protected speech
and even if they were, they were not speech addressing a
“legitimate public concern.”
 The court noted the police department needed only a
“rational basis” to require the officer to wear pants and
long sleeves.
Tattoos & Body Piercings
111

Religious Expression
Tattoos & Body Piercings
112

Religious Expression
 Applicable
 Title
law
VII of the Civil Rights Act prohibits
discrimination against employees on the basis of
religion.
 An employer must offer a reasonable
accommodation to resolve a conflict between an
employee’s sincerely held religious belief and a
condition of employment.
Tattoos & Body Piercings
113

Religious Expression
 Swartzentruber v. Gunite Corp., 99
F.Supp.2d 976 (N.D. Ind. 2000)
A
Ku Klux Klan member sued his employer after he
was forced to cover a tattoo of a hooded man
standing next to a burning cross.
 The employee claimed to be a member of the
Church of the American Knights of the Ku Klux Klan
and that the tattoo depicted a sacred symbol of his
religion.
Tattoos & Body Piercings
114

Religious Expression
 Swartzentruber
v. Gunite Corp
 The employee failed to present evidence that
covering the tattoo at work conflicted with his
religious beliefs.
 The court held that even if the employee had
presented such evidence, allowing the employee to
work with the tattoo covered was a reasonable
accommodation because of the offensive nature of
the tattoo to other employees.
Tattoos & Body Piercings
115

Religious Expression
 Cloutier
v. Costco Wholesale Corp., 390 F.3d
126 (1st Cir. 2004)
 An
employee alleged religious discrimination when
she was terminated for wearing facial jewelry
 The employee claimed to be a member of the
Church of Body Modification
 The employee was terminated for absenteeism
because she refused to remove her facial jewelry
Tattoos & Body Piercings
116

Religious Expression
 Cloutier
 Costco
v. Costco Wholesale Corp
offered to allow her to return to work if she would
wear clear spacers or cover the jewelry with a bandage.
 The employee stated that her religious beliefs required
her to display her jewelry at all times.
 The court found the employer had provided a reasonable
accommodation
 The appellate court subsequently found the employee’s
desired accommodation—complete waiver of the policy—
was an undue hardship on the employer
Tattoos & Body Piercings
117

Church of Body Modification
Tattoos & Body Piercings
118
Employer Solutions to Tattoo &
Body Piercing Issues
Tattoos & Body Piercings
119

Policies
 Should
address whether jewelry or tattoos
pose a conflict with:
 The
employee’s ability to perform effectively in
their position; or
 The specific work environment the employee is in.
Tattoos & Body Piercings
120

Policies
 Factors
to determine whether jewelry and
tattoos pose a conflict:
 Safety
to self and others
 Productivity or performance of tasks
 Perceived offense on the basis of race, sex,
religion, etc.
 Community norms
 Customer complaints
Inturri v. City of Hartford, Conn., 365 F.Supp.2d 240 (2005)
Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (2004)
Weight
121
Employer Regulation of Employee
Weight
Weight
122

Obesity
 Research
released in 2010 by Duke
University found that the yearly cost to
employers of obesity among full-time
employees was $73.1 billion.
 Presenteeism, lost productivity incurred when
employees try to work despite health
problems, costs employers $12.1 billion per
year, nearly twice as much as their medical
costs.
Weight
123

Obesity
 Severely
obese individuals with a body mass
index of 35 or higher accounted for 61% of
all obese employee costs, though they
represent only 37% of the overall obese
population.
 Among those with a BMI of 40 or more—
roughly 100 lbs. overweight—these costs
amounted to $16,900 per capita for women
and $15,500 for men in this weight class.
Weight
124
Employee Wellness Programs as a
Solution
Weight
125

Employee Wellness Programs
 Any
workplace-sponsored program that attempts to
help employees live healthier lifestyles.
 Two approaches:
 Simple - includes having lunch break walks or
adding a few lines in a company newsletter to
remind people the company is offering flu shots
 Extensive – employing consultants to assist with
improving employee health or providing easy-touse, inexpensive services that contribute to good
health.
Weight
126

Employee Wellness Programs
 Potential
 The
Issues
Health Insurance Portability and Accountability
Act (HIPAA) amended ERISA, the Internal Revenue
Code, and the Public Health Service Act in 1996.
 HIPAA generally prohibits group health plans from
basing the entitlement to benefits or incentives on a
“health factor” of an individual.
Weight
127

Employee Wellness Programs
 “Health
Factors” generally include:
 Health status
 Medical condition (including physical & mental illnesses)
 Claims
experience
 Receipt of healthcare
 Medical history
 Genetic information
 Evidence of insurability
 Disability
Weight
128
HIPPA Approved Programs
 Two types:

 Reactive
 Proactive
Weight
129

Employee Wellness Programs
 Compliance
 Despite
this general prohibition, the regulations
interpreting HIPAA include an exception for bona
fide wellness programs.
 This allows employers to enact employee wellness
plans without the burden and expense of HIPAA
compliance.
Weight
130

Non-HIPPA Permitted Wellness
Programs
 Test
for HIPAA exception:
 Available
to “similarly situated individuals” AND
 The reward is unrelated to a health care plan OR
 The reward is related to the health care plan but it
is NOT contingent on satisfying a standard related
to a health status factor.
Weight
131

The Rehabilitation Act of 1973
 Also
has some potential applicability.
 The Act prohibits discrimination against an
otherwise qualified individual with
handicaps, solely on the basis of that
handicap, in any program which receives
federal assistance.
Weight
132



The Rehabilitation Act of 1973
Most cases filed under this law relate to
discrimination based on the employee’s weight by
the employer.
Only a few cases have been successful.
Weight
133
Cook v. State of Rhode Island, Dept. of MHRH (1st Cir.
1993).



The Cook case was the first time a federal appellate court
addressed whether, and under what conditions, obesity is
covered by the Rehabilitation Act.
In this case, the court ruled that the employer had discriminated
against a job candidate based on what they claimed was a
disability: Cook was just over 5 ft. tall and weighed 320 lbs.
In the application process, the employer (MHRH) found no limits
on Cook’s capabilities in the position, but MHRH still claimed
that her weight kept her from being able to work sufficiently
and would promote absenteeism.
Weight
134
Cook v. State of Rhode Island, Dept. of MHRH
 Consequently, MHRH refused to hire Cook. A jury
awarded Cook compensatory damages in the amount
of $100,000.00.
 In analyzing Cook’s claims, the court based its
analysis on the Rehabilitation Act.
 The court upheld all damages the jury below had
awarded Cook, stating that there was ample
evidence to support the verdict.
Weight
135
Cook v. State of Rhode Island, Dept. of MHRH

Under the regulatory framework, a person "is regarded as
having an impairment" if:
 (a) he or she has a physical impairment that does not
substantially limit a major life activity, but that is perceived
by an employer as constituting such a limitation; or
 (b) has a physical impairment that substantially limits major
life activities only as the result of the attitudes of others
toward such impairment; or
 (c) has none of the impairments but is treated as having such
an impairment.
Weight
136

The American’s with Disabilities Act
(ADA)
 The
ADA also has some potential
applicability.
Weight
137

Legal Constraints – ADA
 Three
ways a wellness plan could violate the
ADA:
 Mandating
wellness program participation;
 Using information obtained in the program in a way
that violates ADA confidentiality requirements;
 Using information gained through the wellness
program to discriminate against employees who are
not as physically fit as management thinks they
should be.
Weight
138

Legal Constraints – ADA
 Compliance
issues also arise when wellness
programs offered by the employer do not
offer a reasonable accommodation for
employees with known disabilities and when
an employer inappropriately inquires about
medical conditions.
Weight
139

Legal Constraints – ADA
 The
ADA does allow employers to conduct
medical examinations and inquiries that are
part of its wellness program without having to
show that the examination or inquiry is jobrelated or consistent with business necessity if
such examinations and activities are
voluntary.
Weight
140

Legal Constraints – ADA
 The
EEOC has stated that wellness programs
are “voluntary” as long as an employer
neither requires participation nor penalizes
employees who do not participate.
 An employer having a wellness program that
involves medical examinations or inquiries will
need to determine whether its program
complies with the ADA’s voluntary requirement
141
DRESS CODES AT WORK
Sex Discrimination, Race Discrimination & Religious
Discrimination
DRESS CODES AT WORK
142
Can your dress code policy prohibit
certain clothes?
Dress Codes at Work
143

Yes, With Three Caveats:
 Sex
Discrimination
 Race Discrimination
 Religious Discrimination
Dress Codes at Work
144
Sex Discrimination
Dress Codes at Work
145

Sex Discrimination
 Price
Waterhouse v. Hopkins, 49 U.S. 229
(1989)
 Female
employee received evaluations suggesting
that she walk, talk, and dress more femininely to
improve her chances of achieving partnership in the
firm
 A plurality of the Supreme Court held that the firm
had engaged in “sexual stereotyping,” which was a
violation of Title VII.
Dress Codes at Work
146
Race Discrimination
Dress Codes at Work
147

Race Discrimination
 An
employer may invite race discrimination
claims if its dress code or appearance policy
impacts only a particular race or group.
 Similarly, an employer may not discriminate
against ethnic attire that otherwise complies
with the dress code.
Dress Codes at Work
148
Religious Discrimination
Dress Codes at Work
149

Religious Discrimination
 Employers
risk being charged with
religious discrimination by implementing a
dress code or appearance policy
requiring employees to act in a way
contrary to their religious beliefs.
 In many cases, claims of religious
discrimination arise from policies
prohibiting head coverings or facial hair.
Brown v. F.L. Roberts & Co., Inc., 419 F.Supp.2d 7 (D. Mass.
2006))
Dress Codes at Work
150

Religious Discrimination
 An
employee could prevail on a religious
discrimination claim if the employer cannot
demonstrate that accommodating the employee
would create an "undue hardship”
 An "undue hardship" requirement can be met by
showing that the employee's proposed
accommodation imposes more than a de minimis—
small or insignificant—financial or non-economic cost
to the business.
Dress Codes at Work
151

Religious Discrimination
 An
employer is not required to grant an employee
claiming religious discrimination a blanket
exemption from a "no facial jewelry" policy if the
purpose of the policy is to project a professional
business image.
 An employer should make reasonable
accommodations, where possible, such as placing
the employee in a substantially equal position,
away from the customer's view, if such does not
constitute an undue hardship.
Dress Codes at Work
152

Religious Discrimination

EEOC v. Kelly Services, 598 F.3d 1022 (8th Cir. Minn. 2010)
A
company had a dress policy prohibiting headwear
and loose-fitting clothing to prevent loose apparel from
being caught in the machines and causing injuries.
 Suliman, a Muslim woman applied for a job at the
company. As part of her religion, she wore a khimar on
her head. She was told to remove it for safety reasons if
she desired to obtain the job at the company.
Dress Codes at Work
153

Religious Discrimination
 EEOC
 The
v. Kelly Services
court ruled that the employer had a legitimate,
nondiscriminatory reason for not allowing the headwear.
Furthermore, the EEOC failed to show in its suit that the
reason Suliman did not get the job was a pretext for
discrimination.
 The district court granted summary judgment to the
employer, and the appellate court affirmed.
Dress Codes at Work
154

Religious Discrimination
 Finnie
v. Lee County, 2012 U.S. Dist. LEXIS 6679 (N.D.
Miss. Jan. 17, 2012)
 The
defendant (the jail/employer) sought summary judgment,
which was granted on all charges except for the plaintiff’s
retaliation claim.
 The plaintiff in this case was a woman who had worked at a
county jail. She converted to Pentecostalism and decided she
could no longer wear the pants that were part of her uniform
for work. Instead, she insisted on wearing a long skirt every
day.
Dress Codes at Work
155

Religious Discrimination
 Finnie
 The
v. Lee County
plaintiff told her superior that her religion disallowed her
to wear pants. She was granted leave, as she had accrued
paid time off. When it was time for her to return, she asked
if the policy had been changed to accommodate her. She
was told to she was required to wear pants and, when she
refused to comply, was fired.
 The plaintiff sued, claiming that her First Amendment rights
had been violated. The court stated that the policy did not
target religion and only “incidentally affects” the plaintiff’s
religious practices.
Dress Codes at Work
156

Religious Discrimination
 Finnie
 The
v. Lee County
court asserted that the “pants-only” policy addressed
concerns of uniformity and neutrality. Furthermore, it was a
legitimate and critical concern that an officer wearing a
skirt could be at risk, as she might be unable to properly
defend herself against detainees. This, the court ruled, was
a compelling interest sufficient to warrant the policy.
 The court thus granted the jail’s motion for summary
judgment on all of the plaintiff’s First Amendment claims.
Dress Codes at Work
157

Religious Discrimination

Brown v. F.L. Roberts & Co., Inc., 419 F.Supp.2d 7 (D. Mass.
2006)
 A “no facial hair policy” for employees who came in contact
with customers was not discriminatory and transferring Brown
to a job without customer contact was a reasonable
accommodation
 Court noted there is no legal basis for requiring that company
dress code policies be consistent across divisions
Objectionable Music & Art
158
Objectionable Music & Art
159

Conflicts
 Music
escaping into the unwilling ears of
nearby workers—there is always “spillover”
 One listener’s Nirvana is another person’s
idea of hell; so if music amplifies workplace
tension, it’s probably best to curtail it.
 Employees exposed to objectionable music
may bring claims of discrimination.
Objectionable Music & Art
160

Conflicts – Racial Discrimination
 EEOC
v. Novellus Systems, Inc.,C-07-4787 RS
(N.D. Cal. 2008)
 Employee’s
co-worker liked rap music, constantly
playing it and rapping along even though the songs
contained the “N-word.” The employee, an African
American, complained several times over a year’s
time to his supervisors that the lyrics he was forced to
listen to were offensive.
 When the supervisors failed to act, the employee
contacted the EEOC.
Objectionable Music & Art
161

Conflicts – Racial Discrimination
 EEOC
 The
v. Novellus Systems, Inc.
EEOC sued and stated that while it was not in the
business of judging anyone’s musical taste, racially
offensive language does not belong in the
workplace—even when disguised as popular culture.
 The suit eventually settled for $168,000.
 The employer agreed to amends its harassment
policy to refer specifically to harassment through the
playing of music
Objectionable Music & Art
162

Conflicts – Religious & Gender
Discrimination
 EEOC
v. The Vail Corporation, 07-cv-02035REB-KLM
 An
emergency services supervisor at the Keystone
Resort alleged that she was subjected to harassment
based on her Christian religion and her gender,
denied religious accommodation and treated less
favorably than her male colleagues.
Objectionable Music & Art
163

Conflicts – Religious & Gender
Discrimination
 EEOC
 The
v. The Vail Corporation
employee’s supervisor forbade her and other
Christian employees from discussing their beliefs
while at work or listening to Christian music while on
duty because it might offend other employees.
 Similar restrictions were not imposed on music with
profanity or lyrics promoting violence against
women—two things the claimant found offensive.
Objectionable Music & Art
164

Conflicts – Religious & Gender
Discrimination
 EEOC
 The
v. The Vail Corporation
EEOC claimed the employer also failed to
accommodate the employee’s religious beliefs in
some scheduling requests and sexually harassed her
by letting managers tell sexual jokes and make
graphic comments in the workplace.
 The Vail Corporation paid $80,000 to settle the
religious and sexual discrimination suit.
Objectionable Music & Art
165

Gender Discrimination
 Slayton
v. Ohio Dep't of Youth Services, 2000
WL 272263 (6th Cir.)
 U.S.
Court of Appeals upheld a $125,000 damages
award based, in part, on a coworker's playing
"misogynistic rap music" and displaying "music
videos depict[ing] an array of sexually provocative
conduct."
Objectionable Music & Art
166

Objectionable Art
research has proven that art in
the workplace has a measurable, positive
influence on both clients and employees.
 The world’s top companies invest in
workplace art as they recognize its role as an
effective form of internal branding
 However, art that is seen as politically
offensive, misogynistic, or sexually themed
can lead to harassment liability.
 Marketing
Objectionable Music & Art
167

Objectionable Art
 Robinson
v. Jacksonville Shipyards, Inc., 760 F.
Supp. 1486 (M.D. Fla. 1991).
A
shipyard company employed a female welder who was
continually subjected to nude and partially nude pictures
posted by her male co-workers.
 The conduct violated Title VII because the plaintiff
belonged to a protected category and was subject to
unwelcome harassment based on sex that affected a term
or condition of employment, and the employer knew or
should have known about the harassment and failed to
take remedial action.
Objectionable Music & Art
168

Objectionable Art
 Robinson
 The
v. Jacksonville Shipyards, Inc.
court issued an injunction barring the possession
or display of any "sexually suggestive, sexually
demeaning, or pornographic" materials in the
workplace, defining "sexually suggestive" as
covering anything that "depicts a person of either
sex who is not fully clothed . . . and who is posed for
the obvious purpose of displaying or drawing
attention to private portions of his or her body."
Objectionable Music & Art
169

Objectionable Art
 Other
A
Examples
library employee complained about a coworkers
posting a New Yorker cartoon that used the word
“penis” with no sexually suggestive connotation. The
library ordered that it be taken down.
 A Penn State professor complained that a print of
Goya's Naked Maja hanging in a classroom
constituted sexual harassment. The school
administration removed the painting, citing as one
reason the risk of harassment liability.
Objectionable Music & Art
170

Objectionable Art
 Other
Examples
 An
employee at Murfreesboro (Tenn.) City Hall
complained about a painting depicting a partly naked
woman, so the City Attorney took down.
 The Artistic Freedom Under Attack, a People for the
American Way report, lists eight instances where
employees claimed nude public art constituted
workplace harassment. In each instance, the art was
taken down in order to avoid potential litigation.
http://www.lawmemo.com/articles/cyberspace.htm
Objectionable Music & Art
171

Objectionable Art
 Other
 In
Examples
Dayton, OH, an artist's adaptation of Titian's
Venus painting was removed because "employees
felt they were being sexually harassed by the
painting.”
172
ANY QUESTIONS?
May8, 2012