In my President's column last month, I posed an HR law hypothetical for issue spotting. Below is (1) the original hypothetical I posted, and (2) the issues in paraentheticals that arise from the hypothetical:
Mindy, a 52 year old receptionist, has recently been tardy several times. Susan, her 22 year old boss, has counseled Mindy three times - the third time in writing - and has warned her that any further problem may lead to termination. Mindy offers no excuse for her tardiness, but promises to improve.
Mindy does not improve, so Susan calls her into the office one day and tells her that she is fired. Mindy becomes very upset, and tells Susan that she has been late to work so much because she is afraid of Susan’s boss and husband, the 85 year old Harold. Not only is Harold always yelling and criticizing her work in front of others, he has told Mindy that even though he thinks she is very sexy, he would still like to replace her with his youngest daughter (from his first marriage) who is 43 years old. Mindy is so intimidated by Harold that she has difficulty getting out of bed each morning, and that is why she is late so often.
Susan asks Mindy why she has not said anything sooner, and Mindy says she doesn’t know, but she just hoped Harold’s bad behavior would stop. When asked why she thinks Harold acts badly, Mindy just responds that other Hispanic female employees told her they have been treated the same way. Mindy refuses to identify anyone, however, because she does not want to get them into trouble.
Harold has an excellent record and has been with the company for 65 years. He shows no sign of slowing down and is ready to work past 100 since the company has no mandatory retirement age. Susan is not aware of anyone ever complaining about Harold’s treatment of women. Since Mindy refuses to identify any witnesses, Susan doesn’t want to go around asking everyone in the department about Harold, because that will start the rumor mill and is unfair to him. She believes Mindy has simply made the whole thing up in order to avoid getting fired, and she fears that if she does not terminate Mindy’s employment now, it will create morale problems with other employees who get to work on time.
Here are the issues that the hypothetical pose:
Mindy (Gender/Title VII), a 52 year old (Age/ADEA) receptionist (hopefully classified nonexempt/FLSA), has recently been tardy several times (Disability/ADA? or Intermittent leave/FMLA). Susan (Gender/T7), her 22 year old boss (Vicarious liability/Faragher and Ellerth), has counseled Mindy three times (do we have all three documented?)- the third time in writing (does this mean that we are missing the first two documentations) - and has warned her that any further problem may lead to termination (is Susan following the policy consistently with this warning?). Mindy offers no excuse for her tardiness (Hmmm, if this is because of a disability, the EEOC will want us to engage in the interactive process before we take any adverse employment action), but promises to improve (what does improving mean to Mindy – coming in on time, working faster to make up for lost production? Also, did we document or get her promise in writing?).
Mindy does not improve (so, she is still being tardy?), so Susan calls her into the office one day and tells her that she is fired. Mindy becomes very upset, and tells Susan that she has been late to work so much because she is afraid of Susan’s boss (vicarious liability) and husband, the 85 year old Harold. Not only is Harold always yelling and criticizing her work in front of others (unfortunate but legal as long as he is doing the same thing to everyone else), he has told Mindy that even though he thinks she is very sexy (sex assessment and hostile work environment under T7), and he would still like to replace her with his youngest daughter (from his first marriage) who is 43 years old (While nepotism alone is not illegal, age discrimination under the ADEA is). Mindy is so intimidated by Harold that she has difficulty getting out of bed each morning (ADA? FMLA? Intentional Infliction of Emotional Distress?), and that is why she is late so often (This is now triggered our duty to investigate, but neither Susan nor Harold can conduct the investigation – it must be someone higher than Harold).
Susan asks Mindy why she has not said anything sooner, and Mindy says she doesn’t know, but she just hoped Harold’s bad behavior would stop (Oooops, Susan has already begun the investigation). When asked why she thinks Harold acts badly, Mindy just responds that other Hispanic female (Gender, national origin, color discrimination/T7) employees told her they have been treated the same way. Mindy refuses to identify anyone, however, because she does not want to get them into trouble (We still have to investigate).
Harold has an excellent record and has been with the company for 65 years. He shows no sign of slowing down and is ready to work past 100 since the company has no mandatory retirement age. Susan is not aware of anyone ever complaining about Harold’s treatment of women. Since Mindy refuses to identify any witnesses, Susan doesn’t want to go around asking everyone in the department about Harold, because that will start the rumor mill and is unfair to him (Too bad; start poking around!). She believes Mindy has simply made the whole thing up in order to avoid getting fired, and she fears that if she does not terminate Mindy’s employment now, it will create morale problems with other employees who get to work on time (Cat’s paw theory/T7).