Ohio Employer Law Blog | Daily Updates | 01C1 racial slur + 2 disciplinary actions = 0 Title-VII liability.>01D plus more

1 racial slur + 2 disciplinary actions = 0 Title-VII liability.

The EEOC swung for the fences in a hostile work environment case against Sun Chemical Corp.

It argued that the company should be liable not because it failed to respond after an employee repeatedly called a Black coworker the N-word, but because it failed to prevent the harassment from happening in the first place.

This week, the 8th Circuit wasn't buying it.

Bryan Banks and Ricardo Nevarez had a deteriorating working relationship. Their personal animosity culminated in a heated confrontation in which the two employees exchanged profanities, Nevarez punched Banks's locker hard enough to dent it, and then screamed the N-word at Banks.

Sun Chemical acted quickly. It suspended Nevarez for five days without pay and warned that future misconduct could result in termination. Banks also received a written warning for his own profanity during the confrontation.

To be clear, a single use of the N-word in the workplace and directed a Black co-worker is grossly inappropriate, creates a hostile work environment, and is absolutely worthy of termination every single time.

Banks filed an EEOC charge, and the agency ultimately sued on his behalf, arguing that Sun Chemical's five-day suspension of Nevarez was insufficient and that it had failed to protect Banks from racial harassment. A jury rejected the claim. The EEOC appealed.

On appeal, the EEOC didn't spend much time arguing that Sun Chemical responded inadequately after the incident.

Instead, it argued that the jury instructions overlooked a different theory recognized by the Supreme Court in Vance v. Ball State Univ.: an employer can sometimes be liable for negligently failing to prevent harassment before it occurs.

In other words, the EEOC claimed that Sun Chemical should have done more after learning about an earlier incident in which Nevarez allegedly directed the same racial slur at another Black employee.

The 8th Circuit assumed for the sake of argument that this theory could apply. It still affirmed. The court identified two fatal problems.

First, Sun Chemical lacked notice of ongoing racial harassment. The earlier incident was just that: an earlier incident. There was no evidence that management knew Nevarez had become a serial harasser or that racial harassment was continuing in the workplace. A single prior episode, standing alone, did not put the company on notice that future harassment was likely.

Second, the company actually responded to that earlier incident. After learning about it, Sun Chemical issued written discipline instructing Nevarez to watch what he said and warning him about future consequences. Could the company have fired him? Sure. Did Title VII require it? No.

As the 8th Circuit emphasized, employers are not required to terminate an employee after a first offense simply to establish an adequate remedial response. Progressive discipline remains a perfectly acceptable approach, particularly where the employee has decades of service and no prior history of harassment.

The EEOC also pointed to testimony that Nevarez occasionally used the N-word in workplace conversations. The problem? Nobody reported those incidents. Without actual or constructive notice, the employer couldn't be held responsible for failing to stop conduct it didn't know about.
Practical lessons for employers

This decision reinforces several important principles.

First, one incident matters. Employers should never dismiss a racial slur as "just words." Investigate it promptly and impose meaningful discipline.

Second, Title VII does not impose strict liability. Employers are judged on what they knew or reasonably should have known, and whether their response was reasonably calculated to stop the misconduct.

Third, documentation matters. Sun Chemical's written discipline after the earlier incident proved critical. It demonstrated that the company took corrective action rather than ignoring the problem.

Finally, don't read this opinion as permission to go easy on racist conduct. Different facts produce different outcomes. Had Sun Chemical ignored repeated complaints, tolerated continuing harassment, or failed to escalate discipline after multiple incidents, the result almost certainly would have been different.

The court didn't say that one use of the N-word is insignificant. It said that Title VII does not make employers insurers against every act of coworker misconduct. Liability depends on notice and an unreasonable response. Here, because the EEOC couldn't prove the latter, the jury's verdict stood.

Hidden cameras, horrific conduct, and a critical Legal Distinction: Employers aren't automatically liable for every workplace bad act

The allegations against a former engineering executive at The Pokémon Company International are horrifying.

According to a newly filed class-action lawsuit, the executive allegedly hid cameras in employee restrooms at the company's Bellevue headquarters for years, secretly recording women, children, and others using the facilities. Criminal charges already pending against him allege an even broader pattern of voyeurism, including recordings made at a Starbucks, a Safeway, and his own home, along with charges involving child sexual abuse material.

If the allegations are true, the conduct is monstrous.

But here's the legal point that's easy to miss amid the outrage: an employer is not automatically responsible simply because something terrible happens at work. That's not how negligence works.

The key question isn't what happened. It's what the employer knew—or should have known.

The lawsuit doesn't merely allege that the misconduct occurred on Pokémon's premises. If that were enough, every employer would become the insurer of every criminal act committed by an employee.

Instead, the plaintiffs allege negligence. Specifically, they claim the company failed to train the employee properly, failed to supervise him, failed to control his conduct, and failed to respond to warning signs.

Those allegations matter because they're what could create liability.

Employers generally aren't liable for an employee's intentional criminal acts unless there was something that should have put the employer on notice. In legal terms, the issue is foreseeability.

Did management know about prior complaints?
Were there reports of suspicious behavior?
Did someone raise concerns that were ignored?
Were there red flags that would have prompted a reasonable employer to investigate?

If the answer to those questions is no, the employer's legal exposure becomes much more difficult to establish.

Bad facts don't automatically equal employer liability. Whenever a shocking workplace story makes headlines, there's a tendency to assume the employer must have done something wrong simply because the conduct occurred at work. That's an understandable emotional reaction. It's not necessarily the correct legal analysis.

Employers have a duty to provide a reasonably safe workplace. They do not have a duty to predict every secret criminal act committed by an employee who has given them no reason to suspect misconduct.

The law doesn't require omniscience. It requires reasonable care.

Right now, the public knows very little about what The Pokémon Company knew before law enforcement became involved.

The civil complaint suggests there were "indicators of danger." Whether those alleged indicators actually existed—and whether they were sufficient to put the company on notice—will almost certainly become one of the central issues in the litigation.

If evidence shows the company ignored complaints or failed to investigate obvious warning signs, that's one case.

If the evidence instead shows an employee who carefully concealed his crimes and gave the company no reasonable basis to suspect them, that's a very different case.

The facts—not the outrage—will determine whether the employer bears legal responsibility. That's an important distinction to remember.

Sometimes an employer truly deserves to be held accountable because it ignored warnings or failed to act. Sometimes, however, an employer is simply another victim of an employee's criminal conduct.

This case may ultimately reveal which one applies here. But simply because an awful crime allegedly occurred inside the workplace doesn't answer that question.

Negligence requires more than tragedy. It requires fault. And when an employer did nothing wrong, it shouldn't be defending a lawsuit simply because something horrific happened at work.

Temporary accommodations don't rewrite the job description

One of the more persistent myths in ADA litigation that if an employer temporarily accommodates an employee in a certain way, it has forever admitted that the accommodation is reasonable.

The 8th Circuit just reminded everyone that's not how the ADA works.

In Kendall v. Zoltek Corp., an employee at a carbon-fiber manufacturing facility injured her back and developed sciatica. Initially, her doctor cleared her to return to work without restrictions. Later, however, she requested an accommodation allowing her to sit periodically during her shifts. The company granted that request for several months while it evaluated her condition.

Eventually, though, the medical restrictions became permanent—and much more limiting. By the time her employment ended, she couldn't stand for more than 20 to 30 minutes, couldn't bend, stoop, kneel, crawl under machinery, or lift more than 10 pounds. Her employer's production operator position required employees to stand throughout 12-hour shifts while performing physically demanding work. After she exhausted her leave, the company terminated her employment.

She sued under the ADA, arguing that because Zoltek had successfully allowed her to sit for several months, standing couldn't really be an essential function of the job.

The 8th Circuit wasn't persuaded.

Instead, it reaffirmed several important ADA principles that employers should keep in mind.

First, written job descriptions matter.

The court gave significant weight to Zoltek's written job description, which required employees to stand for up to 12 hours while repeatedly lifting, bending, reaching, pulling, and walking. It also deferred to the employer's judgment that these physical demands were essential to the position.

That's another reminder that job descriptions shouldn't collect dust in an HR file cabinet. They should accurately describe what employees actually do. If they don't, they'll be far less persuasive when litigation arrives.

Second, temporary accommodations don't become permanent obligations.

This is the biggest takeaway from the decision.

The court reiterated its longstanding rule that employers should not be punished for trying to help employees. Providing a temporary accommodation while evaluating an employee's medical condition doesn't mean the employer has conceded that the accommodation is reasonable forever.

As the court explained, employers don't make a job function "non-essential" simply because they voluntarily accommodate an employee for a limited period of time.

That's an important rule. Otherwise, employers would have every incentive to refuse temporary flexibility out of fear that generosity would later be used against them in court.

Third, the ADA doesn't require eliminating essential job functions.

Reasonable accommodation means helping a qualified employee perform the essential functions of the job—not removing those functions altogether.

Because standing, bending, lifting, and similar physical activities were essential functions of this production job, permanently excusing the employee from performing them wasn't a reasonable accommodation. By the time Zoltek made its termination decision, the employee's restrictions prevented her from performing multiple essential job duties, even with accommodation.

That's why the court affirmed summary judgment for the employer.

The takeaways

Employers shouldn't hesitate to provide temporary accommodations while they gather medical information or determine whether an employee's condition will improve.

The ADA encourages flexibility. It doesn't punish it.

Just remember to do three things:

Maintain accurate, up-to-date job descriptions that identify the position's essential functions.
Clearly document when an accommodation is intended to be temporary while additional medical information is obtained.
Continue the interactive process as circumstances change rather than assuming yesterday's accommodation automatically remains reasonable forever.

A temporary accommodation is exactly that—temporary. As Kendall v. Zoltek demonstrates, extending grace to an employee today doesn't rewrite the essential functions of the job tomorrow.

Can you fire an employee for criticizing your DEI program on LinkedIn?

"The company has allowed outright hate to proliferate."

That's one of the statements that got John Richardson fired.

Richardson, a data engineer at Apex Fintech Solutions, published a series of LinkedIn articles criticizing what he viewed as the company's DEI culture. He accused Apex of tolerating anti-male discrimination, fostering a hostile work environment, and allowing managers to engage in discriminatory conduct without consequence.

Apex demanded he remove what it called "false, derogatory, disparaging, and/or defamatory" statements. When Richardson asked the company to identify what, specifically, was false, it didn't. Instead, it fired him—and then sued him for defamation.

Last week, an NLRB administrative law judge concluded Apex violated the National Labor Relations Act.

Whether you agree with Richardson's views is beside the point. The issue wasn't whether he was right. It was whether federal labor law protected his speech.

According to the ALJ, it did.

The judge found Richardson's LinkedIn posts were protected concerted activity because they addressed employees' working conditions and encouraged coworkers to take collective action, including filing EEOC charges. The NLRA doesn't limit protected discussions to the workplace. Employees can exercise their Section 7 rights on social media just as they can in a break room.

Apex argued Richardson's posts lost the Act's protection because they were false and defamatory.

The ALJ disagreed.

The NLRA does not protect statements that are knowingly or maliciously false. But employers don't get to strip employees of statutory protection simply because management believes the criticism is unfair, exaggerated, or damaging to the company's reputation.

According to the ALJ, Apex failed to prove Richardson knowingly made false statements. In fact, when Richardson asked the company to identify what was supposedly false, it never did.

That's an important distinction. Employees can criticize management, express opinions, and use strong rhetoric without automatically losing the Act's protection.

The termination wasn't the only problem. The ALJ also concluded Apex unlawfully ordered Richardson to stop discussing workplace issues publicly, maintained overly broad confidentiality and non-disparagement policies that could chill protected employee speech, and retaliated by filing a defamation lawsuit based on Richardson's protected activity.

That last point is particularly noteworthy.

Employers certainly can sue employees for genuine defamation. But when the underlying speech is protected by the NLRA, a lawsuit itself can become an unfair labor practice if it's intended to punish or silence protected activity.

Too often, employers respond to public criticism by trying to make it disappear. They send a cease-and-desist letter, demand the post come down, threaten litigation, or terminate the employee.

That's a risky strategy. Indeed, before taking any action, ask these questions:

Is the employee discussing wages, discrimination, safety, scheduling, management practices, or other working conditions?
Are they speaking only for themselves, or attempting to involve coworkers?
Does the post invite collective action?
Are the challenged statements factual assertions that can actually be proven false, or are they opinions and rhetoric?
If you believe factual statements are false, can you specifically identify them and prove they were knowingly or maliciously made?

How you and your labor counsel answer these questions will inform and advise whether you are dealing with protected concerted activity.

Social media has become today's break room or water cooler. Employees don't lose their Section 7 rights because the conversation happens on LinkedIn instead of over coffee.

Often times the smartest response isn't trying to silence the criticism.

It's recognizing that employees have broad rights to criticize their workplace—even publicly—and ensuring your response doesn't become the much bigger story.

WIRTW #805 (the 'travel' edition)

"You and mom need to take a trip."

That's what our kids told us in mid-June. Our son was headed to London for a three-week summer program. Our daughter was off to New York City to get her visa for an upcoming semester abroad in France. And my wife and I realized that we hadn't taken a just-the-two-of-us vacation in eight years.

So, we fixed that.

Within 48 hours, I'd booked flights, Airbnbs, ferries between our three stops, winery tours, restaurant reservations, and just enough activities to keep us busy without feeling overplanned. Two weeks later, we were on a plane to Croatia.

If you've never been, go.

Seriously. Ten out of ten. Five stars. No notes.

We loved Croatia so much that we're already planning to go back next summer—this time with the kids.

And as for the "no notes" part? I actually have plenty. If you're planning a trip, I'm more than happy to share them.

Here's what I read this week that you should read, too.

The First Rule of Litigation PR Is Silence. Here’s Why JPMorgan Just Broke It — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Your Employees Can Now Fabricate a Receipt in 30 Seconds. Ugh. — via Dan Schwartz's Connecticut Employment Law Blog

Why manager training may be the key to AI integration — via HR Dive

The AI Adoption Gap: Why Technology Isn’t the Problem and Comms Is the Solution — via Ragan.com

The AI Adoption Gap is Now HR’s Biggest Workforce Risk — via EntertainHR

My boss told me I might be laid off before I take parental leave — via Ask a Manager

When a Midday Commute Between Home and Work Stays an Unpaid Commute, According to the DOL — via Eric Meyer's Employer Handbook Blog

How Does an Employer Respond to an Employee Who Fails to Cooperate with the FMLA Second- or Third-Opinion Process (or Fails to Follow Call-in Procedures)? — via Jeff Nowak's FMLA Insights

Summer Holidays Are Here: Eight HR Headaches That Return Every Year — via The HR Gazette

GLP-1s and the High Cost of Providing Health Care — via Harvard Business Review

Is it illegal to trick the US government into wiping your phone during a questionably legal search? — via The Verge