These cases provide a number of lessons for employers. As a result, employers should review their policies and practices and ensure that they are strategically in accord with these decisions.
Pennsylvania State Police v. Suders
In June 2004, the court examined whether the employer's affirmative defense in sexual harassment cases is available where the employee claims to have been constructively discharged -- for example, intolerable working conditions that, in effect, force the employee to resign. The court held the affirmative defense can apply to constructive discharge cases, but only when the constructive discharge is triggered by conduct which does not constitute "official acts," such as demotion or cuts in pay.
Where official acts create an intolerable working environment that forces the employee to quit, the defense is not available.
There are two strategic consequences of Suders. First, employers must ensure that they have adopted and implemented effective policies and procedures for prohibiting and investigating claims of harassment. Also, employers must train employees about the policy and complaint procedures and train supervisors regarding how to respond to complaints and recognize conduct that could lead to a complaint.
Second, Suders suggests that employers must investigate unexpected or unexplained changes to employees' status or terms of employment ordered by supervisors to determine whether such changes were motivated by unlawful motives. In addition, employers should investigate unexpected or unexplained resignations to determine whether they were truly voluntary or motivated by supervisory misconduct.
Investigations of adverse decisions and resignations can be used by the employer in defending against any subsequent claims of "constructive discharge."
Raytheon Co. v. Hernandez
In December 2003, the U. S. Supreme Court held an employer's invocation of a neutral "no-rehire" policy banning the re-employment of all workers who were terminated or forced to resign always dispels a preliminary showing of disability discrimination based on a rejected applicant's claim of "disparate treatment." To prevail on the claim under the Americans with Disabilities Act, the applicant must then show the employer used the policy as a "pretext" for intentionally discriminating against him or her.
In light of this decision, there are several preventive measures employers should consider. First, identify and review policies that automatically bar re-employment after a positive drug or alcohol test result, restrict the duties to be performed by employees who test positive for illegal drug use or alcohol, or bar re-employment following a discharge for workplace misconduct, excessive absenteeism or tardiness, and poor performance for conformity with existing law and workplace trends.
Second, consider implementing a neutrally applied policy against rehiring employees terminated for workplace misconduct. Such policies will provide protection for employers sued for employment discrimination based on their failure to hire ex-employees.
Given the complexity surrounding workplace disability issues, employers should continue training managers and supervisors about the risks and opportunities in the hiring, managing, disciplining and terminating of individuals with physical or mental conditions that might be actual or perceived disabilities under the ADA, state or local law.
General Dynamics Land Systems Inc. v. Cline
In February 2004, the U. S. Supreme Court ruled that the Age Discrimination in Employment Act does not shield individuals from discriminatory action within the protected age category who are given less preferable treatment than similarly situated older individuals.
Therefore, the ADEA does not prohibit favoring older employees over younger employees. Employers may provide benefits to older workers not provided to younger workers, such as enhanced retirement packages for workers who have reached a certain age. However, employers should always check state and local laws to ensure they are not operating in a state or locality that prohibits discrimination against younger workers.
These recent Supreme Court decisions make it clear that workplace law issues continue to catch the attention of the highest court in the land. Employers must continuously monitor case law developments and implement effective preventive strategies to avoid employment litigation while fostering an environment in which best employer practices can proliferate.
Lynn C. Outwater is the managing partner of the Pittsburgh Office of Jackson Lewis LLP. With 20 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach her at email@example.com or (412) 232-0404.