Don’t matter if you’re black or white

February 16, 2016 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Somewhere between outrage, bewilderment, and comedy falls the news that a U.K. production company has cast very very very white actor Joseph Fiennes as Michael Jackson in Elizabeth, Michael and Marlon, a short film about a rumored post-9/11 road trip involving Liz Taylor, Michael Jackson, and Marlon Brando.  hip hop funk dancer dancing man

There has been much criticism of this particular casting decision, especially against the backdrop of the #OscarsSoWhite campaign. But what about any black actors who believe the casting of a white actor is discriminatory? Turns out they probably don’t have a case.

A few years ago, black applicants for ABC’s The Bachelor sued the network and the show for race discrimination. They alleged the show overwhelmingly preferred white contestants over blacks. A federal district court dismissed their action and made some interesting points. The court pointed out that the plaintiffs’ theory would call into question how certain networks target an audience (Ovation, Telemundo, BET) as well as the demographic makeup of the casts of various shows (The Shahs of Beverly Hills, The Cosby Show).

The money money quote from that decision is, “To the extent that these networks and programs discriminated and discriminate in their casting choices, would they not be subject to civil liability under prevailing state and/or federal antidiscrimination statutes, but for the First Amendment? There are other examples: Would applying anti-discrimination laws require a playwright to consider white actors to play Othello, black actors to play Macbeth, or a male to play Lady Macbeth? For that matter, could a dramatist face civil liability for staging an all-female version of Romeo & Juliet?”

Fair points.  The only thing keeping 2 Broke Girls from becoming The Golden Girls is freedom from the Age Discrimination in Employment Act.

Peyton Manning and retirement–Super Bowl lessons on avoiding age claims at work

February 01, 2016 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

Super Bowl week is here. Everywhere you look (and I mean everywhere) this week, you will be reminded that the “big game” is this Sunday. You’ll be told what kind of chips to munch, the type of pizza to order, the beer, and soft drink to drink, the television or mobile app to watch it on, etc. It’s as if it’s some big media circus instead of a football game! NEWARK, NJ - JANUARY 26, 2014: Denver Broncos' Peyton Manning ar

If you listen closely, though, you might also hear about the two teams playing—the Denver Broncos and the Carolina Panthers. This year’s match-up offers great story lines that even the best WWE writer couldn’t dream up. The one you are most likely to hear about, though, is the battle between the two quarterbacks. The Broncos will field Peyton Manning (whose records and accomplishments should speak for themselves) and the up-and-coming Cam Newton, who led his team to a 15-1 regular season record and only the second Super Bowl appearance in the franchise’s history. The two quarterbacks’ personalities (and styles) couldn’t be more different. Manning’s persona is strictly business, and he frequently out-humbles even himself during interviews. Cam, on the other hand, is a bit flashier, having drawn negative attention throughout the season as a result of his penchant for dancing after scores.

Peyton Manning’s other competition this weekend is Father Time, a relentless competitor who remains undefeated across all sports. Peyton Manning is only 39. But, by NFL measure, he is practically ancient. To put it in perspective, he’s two years older than the next oldest starting QB (whom he defeated last week in the AFC Championship). He’s also the oldest QB to ever start in a Super Bowl, just ahead of his current boss and former Denver Broncos great, John Elway. To be sure, there is no mandatory retirement age in the NFL. Several QBs have played into their 40s. George Blanda even played until he was 48! But, with mounting injuries, that’s not likely to be the case for Manning.

Aging superstars are also likely part of your company. Indeed, a 2014 BLS study showed the U.S. workforce has never been older. Handling workers in their “golden years” can be somewhat tricky. Once an employee reaches the age of 40, he/she gains a new protected class status under federal lawage discrimination. Some states offer the same or similar coverage. It’s at this point that joking with an employee about his eventual retirement goes from playful to painful.

In a recent case, for example, a physician practicing at a Pennsylvania hospital filed suit alleging that when he had expressed an interest in renewing his contract, hospital administrators commented that they assumed the 63 year old would be retiring. The court held the administrators’  statements could form a basis for a jury to either disbelieve the hospital’s asserted reasons for terminating the physician’s contract. Similarly, an Alabama district court recently allowed a pharmacist’s lawsuit to proceed to trialeven where his employer cited numerous examples of the pharmacist’s poor performancebecause his supervisor made certain age-related remarks including asking the pharmacist whether he “planned to retire soon.”

These examples show that age-related comments can undermine even the most legitimate disciplinary actions. Employers would be well served to take certain steps to minimize this risk, including keeping HR professionals directly involved in the performance management process, which includes the communication of employment decisions to employees. Managers should be coached on how to discuss possible adverse actions with employees, to ensure they are aware of sensitive topics to avoid. In particular, managers should be counseled to avoid asking the employee about his/her retirement plans unless required by the business at hand. As Peyton Manning would tell you, preparation is key in all things.

Age, sex, and sports media

December 21, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Sports reporter Colleen Dominguez is 54 years old and has enjoyed a successful career in sports journalism including a lengthy stint at ESPN. Dominguez recently jumped to Fox Sports 1 and believes her age and gender are the only plausible reasons that FS1 has cut her broadcasting assignments and diminished her career. These are her allegations in a lawsuit filed recently in a California federal court. The complaint tells the story of a veteran, experienced reporter who has paid her dues but is being pushed aside by the men and the new pretty girl on the block. Can a media company make decisions based on the age and gender of its on-air talent?a young woman journalist with a microphone and a cameraman

This is not the first time this has come up in the TV and entertainment industry. In 1993 a Minnesota jury awarded 53-year-old sportscaster Tom Ryther $1.2 million in an age discrimination case. Ryther, a longtime fixture on TV news, was not renewed after his network commissioned a poll that showed he wasn’t having a “positive” effect on viewership. According to Ryther, at the time of his termination, the station manager asked him how it felt to be a failure at age 53.  No doubt that played well with the jury.

Ten years earlier, a Missouri court ruled against a female newscaster on her sex discrimination claim. She was replaced on air after a local survey showed she scored very low in categories dealing with “good looks” and the image of a “professional anchor woman.” The court rejected her arguments that the station’s appearance standards were discriminatory and were applied more leniently to men.

Equal Employment Opportunity Commission (EEOC) regulations state that the bona fide occupational qualification (BFOQ) defense isn’t available in a sex discrimination case when the adverse action is based on “stereotyped characterizations of the sexes.” Likewise, the BFOQ defense isn’t available in an age discrimination case unless the defendant can show that the disqualifying characteristic cannot be separated from age. Dominguez’s complaint alleges statements by FS1 personnel that link her reduced workload to perceptions about her age and her gender.

Anyone who consumes sports television cannot help but notice that it is male-dominated, and the few women one sees on screen skew young. Is Dominguez a victim of industry perception?  It will be interesting to see how FS1 frames its defense.

Ranking the high court

December 01, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

When football season kicked off earlier this year, I took the chance to glean some insights for HR professionals from the difficult job facing the new college football playoff selection committee. Now that we’re coming up on the end of the football season, I’m turning to the committee once more for inspiration.shutterstock_105026918

As I write, the selection committee is chewing over this weekend’s results and will let us know its judgment on the four best teams (so far) in college football. Soon, they will choose the “final four” who will play a two-week tournament to decide the national champion. Right now, Alabama and Oregon are pretty much the consensus #1 and #2. Despite Florida State’s best efforts to play their way out of this thing, they keep finding ways to win and are generally #3 by default. Mississippi State (last week’s #4) took it on the chin from their archrival, Ole Miss, so the committee will apply its eye test and pick a new #4 (and leave an angry #5 and #6). My money is on TCU at #4.

I’m going to borrow the format and select my top four Supreme Court employment law decisions from the last five years. I’ve ranked them below, along with a capsule summary that explains why I’ve ranked it #1, and so on. Then, I’ll pair them up, play them off of each other, and pick the champion. Feel free to disagree in the comments!

The Final Four

Number 1: Wal-Mart Stores, Inc. v. Dukes (2011). This case is a true heavyweight, combining employment law and federal class action procedure. Wal-Mart won at the Supreme Court, which held that a nationwide class action of present and former female employees was inappropriate under the Federal Rules. Wal-Mart’s win in this case was a powerful blow against attempts to aggregate individual employment decisions under one lawsuit.

Number 2: New Process Steel, L.P. v. NLRB (2010). This one gets in on flash. The case garnered a ton of controversy, newsprint, and political attention at the time. The ultimate question, however, may have been a bit pedestrian: Eventually, New Process Steel prevailed when the Supreme Court held that two members of the National Labor Relations Board did not constitute a quorum of the board for exercising authority.

Number 3: Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010). Wait a minute – this one isn’t even an employment case! No matter. AnimalFeeds is a key component of a recent line of Supreme Court authority that supports the use of arbitration to resolve disputes. More and more employers are presenting arbitration programs to employees, and they will particularly like the holding in this case that class action arbitration is not available unless the parties specifically authorize it.

Number 4: Gross v. FBL (2009). This case sneaks in and will probably seem a bit esoteric to non-lawyers. Gross held that “but for” jury instructions are the rule for Age Discrimination in Employment Act claims, unlike status discrimination Title VII claims in which a lower “mixed motive” instruction is appropriate. Gross has already had one follow-up: University of Texas Southwestern Medical Center v. Nasser (2011), which applied the higher “but for” standard to Title VII retaliation claims.

The Predictions

In the Rose Bowl, top-ranked Wal-Mart v. Dukes will win a surprisingly close victory over Gross v. FBL. Gross is already punching above its weight, but just can’t overcome the sheer significance of the Wal-Mart opinion. Next, in the Sugar Bowl, AnimalFeeds and its arbitration impact will score a minor upset over New Process Steel. Finally, Wal-Mart claims the title of most significant Supreme Court decision in a championship game that is never all that close.

So … who thinks my crystal ball is broken?

All you need is employment law

August 04, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

Our blog seems to have focused quite a bit recently on stories from the world of sports, and given the number of professional athletes behaving badly lately, that comes as no surprise. So for this week, we’ll take a break from litigious punters, abusive running backs, and egotistical power forwards to focus on another area of entertainment. Our diversion is well-timed, because I was fortunate enough to attend Paul McCartney’s concert last weekend at Target Field in Minneapolis, where the hapless Minnesota Twins are usually the athletes playing badly, if not behaving badly.  Beatles

What do Paul McCartney and the Beatles have to do with employment law? Well, plenty as it turns out. In fact, with a little creativity, we can conjure up an employment-law subtext to many of the top hits by Sir Paul and his bandmates.

Let’s start with some obvious ones. What HR manager hasn’t had the nightmare of dealing with a lecherous employee who is fond of telling his coworkers, “I Want To Hold Your Hand”? On those seemingly rare occasions when such advances are welcome, the resulting workplace relationship almost always ends badly, and on those more frequent occasions when the proposition is declined, a sexual harassment complaint may not be far behind.

Many popular Beatles’ songs take on a whole new meaning when we view them through the prism of the reasonable accommodation provisions of the Americans with Disabilities Act. According to the Equal Employment Opportunity Commission (EEOC), it seems that an employer should begin engaging in the interactive process any time an employee says, “Help! I need somebody!” That’s when a top-notch HR manager will tell the employee, “We Can Work It Out,” if it can be done reasonably, without undue hardship. And once that employee has been accommodated and can resume happy and productive employment, he or she is sure to respond to any inquiries about work by saying, “I Get By With A Little Help From My Friends.” Or if the employee is Joe Cocker, something unintelligible that sounds sort of like that. (Too obscure a reference? Prove me wrong, readers!)

Of course, physical disabilities are not the only ones that employers are required to accommodate. So if one of your employees announces one day, “I Am The Walrus,” or even “I am the egg man,” for that matter, a whole different type of accommodation may be required. Unless of course, the employee does not suffer from a disability at all, but simply reported to work while Hi Hi Hi. (Yeah, I know, that’s the Wings not the Beatles; it’s called artistic license, and it’s a method well known to any Paperback Writer.) If that’s the case, you may need to look at your state’s drug and alcohol testing laws, rather than considering an accommodation.

While we’re on the subject of different protected classes, with today’s aging workforce, many senior employees may be asking their employer, “Will you still need me? Will you still feed me? When I’m 64.” An employer who gives the wrong answer to that question may find itself on The Long And Winding Road of an age discrimination lawsuit.

Switching to a different area of employment law, we’ve all seen a lot more wage and hour claims over the past few years. Having said that, however, I have yet to see an overtime claim arising from an employee being forced to work Eight Days A Week. Of course, we know that claim is false. Why? Because that employee may have been working a lot lately, but our time records show that she didn’t work Yesterday.

When viewed through the eyes of an HR manager, an employee’s plea to stay here and not go to work Back In The USSR turns into a somewhat outdated request for help with an H1-B visa. And in the event of a workplace injury, you’d better hope that the shop foreperson’s motto was not “Live And Let Die.”

Sometimes, despite the superhuman efforts of the HR Department and the company’s employment counsel, the employee may still have a valid claim. No employer is perfect. But even in that unlikely scenario, all is not lost; while money Can’t Buy Me Love, it can usually buy a reasonable settlement.

Is age just a number? Lessons from Jay Leno’s departure

February 09, 2014 - by: Matt Gilley 1 COMMENTS
Matt Gilley

I’m beginning to feel my age. Last night, a good friend celebrated a milestone birthday (I won’t say which milestone, but you can probably guess). His wife asked everyone to come in 1970s garb or as a character from the decade, so I went as J.R. Ewing. Our babysitter (born in 1995) had no idea who J.R. was. Deflated, I sighed and quoted Journey’s classic rock ballad, “The Wheel in the Sky Keeps on Turning.”    shutterstock_96916121

She didn’t get that one, either.

Speaking of age, the New York Times recently addressed Jay Leno’s retirement from the Tonight Show. (I’m afraid to ask whether our babysitter knows about Johnny Carson.) Leno is surrendering his seat at age 63 to 39-year-old Jimmy Fallon, and the Times took the event as a springboard to examine some of Leno’s contemporaries and their views on retirement.

For personnel leaders, I think several realizations are important to avoid age from becoming more than just a personal concern:

(1)  Retirement is occurring later. The Times article quotes a study that the average age at which people stop seeking work is now around age 61, up from 59 in 2003 and 57 in 1993. Demographically and economically, I suppose no one should be surprised. In the last 13 years, the United States has witnessed two stock market crashes, which depleted some retirement savings. Additionally, the swell of Boomers approaching retirement, and the lesser numbers in later generations, will strain Social Security and Medicare, and age of eligibility has and is sure to increase. As a result, HR managers should prepare to handle generational differences between relatively younger workers and older workers who are sticking around longer.

(2)  Retirement is not necessarily a choice. In the Times article, Jay Leno remarked, “It’s not my decision,” when asked about his retirement. His experience is similar to many other unplanned retirements. Folks in their fifties and sixties may not be ready to retire. They may still be good at their jobs. They may still be productive. They may still be healthy and energetic. They’ve got valuable years of experience. Why wouldn’t they want to stick around and why wouldn’t their employers want them?

The Times asserted the answer often lies in the fact that older workers cost more in terms of salary and benefits, so that “metric-centric” employers may find themselves deciding whether to trim older employees as well during reductions in force. However, any reduction in force can be a perilous business, and the Age Discrimination in Employment Act (ADEA) and the Older Workers’ Benefit Protection Act (OWBPA) up the ante significantly if a company downsizes to the detriment of its older workers.

HR managers should step carefully and be sure to seek guidance on their ADEA and OWBPA obligations. For example, do you know whether your severance agreements are OWBPA-compliant?  Do you know the last time the OWBPA language was reviewed? Do you have any idea what I’m talking about? If the answer to any of those questions is “no,” you need to take a look at your severance agreements and RIF practices.

(3)  Creative employers can take advantage of the available talent.  Jay Leno didn’t want to retire, and believes he can still bring an audience. I think he’s right, and some network will capitalize on his newfound availability.

You can do the same. Experienced folks with talent and skill are hitting the market. Plenty of them are going to be looking for employment, whether on a permanent, short-term, or independent contractor basis; in fact, many retirees go through the “revolving door” and wind up back in their same position as a contractor. Do not overlook this talent pool, but remember that regulatory agencies at all levels are scrutinizing independent contractor relationships. Be sure to audit these relationships so the revolving door doesn’t send a liability walking in.