I was reading the Ohio Employer’s Law Blog and found this great post regarding a workplace defamation case. They actually had the email quoted that contained the so-called defamation. Here it is.

It is with sincere regret that I must inform you of the termination of Alan Noonan’s employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone’s part. It is incumbent on all managers to understand Staples[’s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver’s responsibility to monitor and question is a critical factor in effective management of this and all policies

The Court in that case held that the email above could amount to defamation even though the statements are true. Alan Noonan did violate the travel and expense policy. I generally sympathize more with employees, but even I am amazed that this email could get a company in trouble. It is all true and the company seems to be making it clear that they want people to follow their policies. That is what a good company should do. But the company, Staples, could be in trouble if a jury finds that the email was sent out only to embarass Mr. Noonan. Employers need to be very careful about what they say and employees should know that court’s will help them protect their reputations.

Retaliation Law – Strong Support from High Court

The United States Supreme Court has made it clear that workers must be protected from retaliation. Illegal retaliation occurs whenever an employee is punished for reporting discrimination or sexual harassment. In a string of recent cases, the Court has strongly supported employees. The Court recognizes that retaliation cannot be tolerated. Otherwise, the anti-discrimination and harassment laws will have little effect if workers can be punished for reporting discrimination or harassment. Employees will not report workplace violations if they are not protected. In a recent decision, the Court stated that “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” In it’s most recent decision, Crawford v. Metropolitan Government of Nashville, the Court again held in favor of an employee who had been fired shortly after she told company investigators that her boss had sexually harassed her. For more on this case or to get a full version of the Court’s decision, see The Employment Law Memo.

Workplace Slander and Defamation Suits Take Off

A person’s reputation in the job market has never been more important. If false statements about an employee’s skills or integrity are circulated, then obtaining a new job will be next to impossible. That is one reason why workplace defamation suits are increasing. Technology is another factor fueling the fire because false statements can quickly be distributed through e-mail or networking sites like twitter, facebook, and linkedin or through on-line employee screening services. See today’s article in the National Law Journal “Workplace Defamation Suits Rise,” by Tresa Baldas. Recent cases have been based on the following facts: 1. Employer submitting unfounded theft accusations to an industry wide employee screening company. These false accusations caused the employee to be blackballed from his industry. 2. Employer sending out email to 1,500 employers stating that manager was fired for violating the company expense and travel policy. Even though the statement was true, the court allowed the case to proceed because the e-mail was intended to humiliate the employee and the employee was identified by name in the e-mail. 3. Law firm sued for issuing a press release stating that a partner had been fired for “extremely inappropriate personal conduct.” We will be seeing more of these cases as employees need to protect their reputations.

Some companies do not treat working moms equally. Some think that working moms have “too much on their plate” and don’t give moms the same opportunities at work. Take Laurie Chadwick, a mother of four young children, for example. She had a strong record of success at Wellpoint Inc., even though she had young kids. She scored a 4.40 out 5 in her latest review. But when she applied for a promotion, Wellpoint rejected her and instead promoted a less qualified woman without children. Ms. Chadwick sued for sex discrimination.

The federal trial judge threw her case out of court, but the relentless Ms. Chadwick appealed. She found a sympathetic audience with the Court of Appeals and they reversed that pesky trial judge and reinstated her case. Here is what the Court of Appeals said:

Unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. … [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities. (Read the full court opinion here.)
In Ms. Chadwick’s case, the company made a few telling comments. For example, when she asked why she did not get the promotion, she was told, “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” And during the interview, one of the interviewers said, “Oh my — I did not know you had triplets. Bless you!” This decision in favor of Ms. Chadwick is a great victory and it can be used by other working moms who suffer discrimination.

Check out the The Employee Rights Post for more commentary on this case.

Why Is Age Discrimination So Complicated?

There is an act of congress called the Age Discrimination in Employment Act (ADEA). The purpose of that law is to outlaw age discrimination. It follows that an employer that commits age discrimination should be liable for violating the ADEA. But the United States Supreme Court, some time ago, came up with a brilliant concept called “mixed motive” analysis. This theory gave an out to employers who commit discrimination. It says that even if a company fires an employee due to advanced age, it can escape liability if the victim would have been fired anyway. To make an analogy, this would be like saying that a person can escape liability for murder so long as the victim would have died at that time anyway from another cause.

In a case called Gross v FBL Financial Services, Inc. the U.S. Supreme Court will decide if it should continue watering down the ADEA or instead follow common sense and simply outlaw age discrimination. Murder is illegal and it does not matter if the victim would have died anyway. Likewise, companies that commit age discrimination should be held liable – no matter what. What benefit could possibly come from giving an out to companies that commit age bias? Keep it simple and keep it illegal. Nothing good comes from age discrimination. If you would like to read more about this case and hear other points of view, please see The Connecticut Employment Law Blog, Scotusblog, and The Employee Rights Post.