When I go to a restaurant by myself, one of my pet peeves is to be asked, "just one?" like it's a sign of my own personal failure to be there without another guest. A public employee in Oregon can probably relate -- she just had her own version of "just one" shot down by the U.S. Supreme Court. If you've been treated arbitrarily or irrationally, you better find someone else to join you at the table, says the Court.

Anup Engquist, a woman from India, sued her employer, the Oregon Department of Agriculture, after years of torment at the hands of a coworker, Joseph Hyatt, that ultimately resulted in her termination, allegedly for financial reasons. Over the years that he worked with Engquist, Hyatt refused to give her information she needed to do her job, made false, derogatory statements about her, and constantly monitored her, even when she went to the ladies room. (See Petitioner's Brief at 3). Even after Hyatt was twice denied a managerial promotion, and transferred to another department in the same building, he continued to torment Engquist. Ultimately, he worked with another manager, John Szczepanski, to get Engquist laid off, ostensibly for financial reasons.

Engquist filed a lawsuit challenging her treatment, and in a trial on the merits of her case, introduced a mountain of evidence showing Hyatt's hatred of Engquist and his constant efforts to undermine her, which the jury believed in awarding a verdict of $425,000 in damages in her favor, not because she was fired due to her race, sex, or national origin, but because the jury believed she had been treated arbitrarily and unfairly. However, that verdict was appealed, and a 2-1 panel from the Ninth Circuit Court of Appeals overturned the verdict in her favor. (See Ninth Circuit opinion.) Engquist then appealed to the U.S. Supreme Court.

The Supreme Court ruled against Engquist 6-3, in an opinion written by Chief Justice Roberts. (See Supreme Court opinion.) The primary issue before the Court was whether Engquist could bring an Equal Protection argument demonstrating that she had been treated arbitrarily and irrationally, if she was a "class of one," -- the only person making this argument. Generally, equal protection cases are brought by individuals claiming unfair treatment as a result of their membership in a particular class: race, sex, national origin, etc.) However, although Engquist was an Indian woman, the portion of the case before the Supreme Court was whether she could be fired for "arbitrary, vindictive, and malicious reasons." This was considered a "class of one" equal protection claim.

A "class of one" claim appeared to be permitted by an earlier Supreme Court case which involved housing discrimination, and a few lower courts had applied it in other public employee cases. But the Supreme Court had never directly applied the theory in cases involving public employees before, and ruled that it was not appropriate to do so in this setting either. Essentially, the Court ruled that the government as a public employer has more leeway to act arbitrarily than it does when using its power against ordinary citizens, and that allowing the "class of one" claims to move forward would permit too much litigation against governmental employers.

Chief Justice Roberts, in writing for the Court, states:

(Supreme Court opinion at 12.)

According to this decision, if a public employee is treated differently than other employees, he or she must show not just that they were treated differently, but that the reason for this treatment is due to their membership in a protected group.

(Supreme Court opinion at 12-13.)

So public employees who have been treated arbitrarily and irrationally by their employers have to bring someone to court with them, in essence demonstrating that there are other members of their protected class who would have been treated the same way, while others not in their protected class were treated more advantageously.

If the answer is "just one," then the federal courts will "just say no," which denied Engquist her place at the table, and will do the same for other government employees who can't show they are part of a class of people treated differently than others.

Unfortunately, we live in a world where harassment and retaliation cases haven't gone away, and there are still some pretty egregious ones there. But a couple of suits filed recently caught my eye in that they involve the actions of the employer's spouse. In both cases, powerful people brought their spouses into their workplace to work with them, but their employees allege their boss wasn't doing enough to curb their spouse's egregious behavior. These cases highlight the worst side of nepotism, where bosses don't hold their spouses to the same standards of behavior to which the rest of their employees would be subjected.

Wendy Williams is a national radio personality and host of the show "The Wendy Williams Experience," also featured on VH-1. Kevin Hunter is Ms. Williams' husband and manager. Williams' talent booker and publicist Nicole Spence recently filed a lawsuit against the show, its broadcasting company, Williams, and Hunter, alleging that due to Hunter's conduct, she felt unsafe at the office.

Ms. Spence alleges that Hunter screamed and cursed at her at work, and called her late at night to tell her about his sexual fantasies and proposition her. When she refused his advances, Ms. Spence claims that Hunter's conduct became even more threatening. Ms. Spence also feared for her safety because of the way Hunter treated his wife. She claims that Hunter once stormed into an office meeting, "pinning (his wife) against the wall with his hand around her neck, choking her while repeatedly pounding his fist into the wall directly by her head" -- all because, she says, Williams failed to quit smoking. (See Associated Press article.) Another explosive allegation contained in the lawsuit is that Hunter attempted to find a hit man to have one of Williams' on-air rivals killed after she bad-mouthed Williams. (See Black Voices blog.)

Even after the lawsuit was filed, Ms. Spence continues to work at the station. (I bet the environment is a little tense these days, however, and it sounds like she might want to watch her back.) As is typical, Williams has denied the allegations, saying that "Her allegations are totally false. This b*tch is out of her mind...." Hunter added that the allegations were "so far from the truth. It's insane." (See New York Post article.)

In Kansas City (my former home), Mayor Mark Funkhouser, who has already weathered several scandals since taking office in May 2007 (see Kansas City Star article), now has his hands full with a new lawsuit filed by a former aide, Ruth Bates, that primarily focuses on the behavior of Funkhouser's wife, Gloria Squitiro. (See Petition for Damages, Bates v. City of Kansas City.) The legal issues raised by the case are compounded by Squitiro's status in the mayor's office as an unpaid full-time volunteer -- albeit one that speaks on the mayor's behalf. (See Kansas City Star article.)

Ms. Bates volunteered with Mayor Funkhouser's campaign while he was running for office, and says she was asked to attend campaign events with her son and his friends, who were often the only African-Americans at those events. (See Kansas City Star article.) (Funkhouser ran against a popular African-American city council member, Alvin Brooks, who was supported by many local black politicians). After Funkhouser narrowly won election, Ms. Bates observed that the majority of the aides Funkhouser hired were white men. After Ms. Bates complained, she was offered a staff post as Administrator of Boards and Commissions. (See Petition for Damages, Bates v. City of Kansas City.)

However, Ms. Bates claims that she was the lowest paid full-time member of the mayor's stuff, and was paid considerably less than other aides with less experience and education than she had. (Salary information for city employees, which is public, is available here: Kansas City employees database.) She also claims that Squitiro called her "Mammy," while calling the only other African-American employee in the office "Bernie Mac" and "Mammy." Squitiro is alleged to have said, when discussing attendance at a meeting in a Hispanic neighborhood, "I hope they don't throw hot tamales at us." Squitiro is also accused of making a number of sexually-charged comments in the office, and when another employee complained, responded that she was the only "fun" employee in the office. (See Petition for Damages, Bates v. City of Kansas City.)

Bates filed an administrative claim with the Missouri Commission on Human Rights last fall, and claims to have suffered additional retaliation after her claim was filed, including being denied the small raise she was promised after complaining about her low salary, and termination on May 19, after she was told she would have to leave the Mayor's office for a position in another department. (See Kansas City Star article.)

The mayor's office has not commented on the allegations, except to tell supporters, "We are entering a difficult time again, and as such, we also know that our supporters will be sharing the difficulty with us as well. We apologize for this, and, as always, we are working hard to continue to earn and keep your faith and trust." (See Kansas City Star article.) Funkhouser has also declined to change Squitiro's volunteer role with his office.

If the allegations in these cases are true, you have a situation where employees have the ability to wield tremendous power over other employees, not by virtue of their role as a supervisor or manager, but by virtue of their relationship with the head of the office, which in each case is the powerful figurehead and the reason for the office's existence. There would be no "Wendy Williams Experience" without Wendy Williams, and Mark Funkhouser is the elected official who heads the mayor's office.

Because the office, in essence, revolves around them, they have the authority to install their spouse as a staff member in the office. It's safe to say that there was no hiring mechanism when their spouses were brought on board. And, as these employees have learned, there's no real way to complain when the spouse's behavior is out of line. These figureheads are unlikely to fire their spouses without it having a significant impact on the relationship, and they aren't going to fire themselves for making bad personnel decision.

With the high percentage of relationships where both partners work, and the ever-increasing number of couples who meet at the workplace, we are likely to see more situations where a spouse's behavior adversely impacts the office environment. It's not something that it's easy to legislate around. While there are instances where there are legal limits on nepotism in government offices, here, where Squitiro is a volunteer, it may be more difficult to limit her influence. And corporate policies are unlikely to make a difference in situations where the company is structured around the office figurehead who wants to hire her spouse.

But all workers are entitled to a harassment and retaliation-free workplace, and so going to court may be the only way to resolve some of the most egregious situations where a spouse's behavior is seriously out of line. As these lawsuits progress, we'll see if having to take such a drastic step is the only real solution for Ms. Bates and Ms. Spence.

I am thrilled to announce that today, June 2, I return to work with Workplace Fairness as the organization's Executive Director. Workplace Fairness' mission of providing information and education to workers and representing the pro-worker voice in public policy debates is as viable as it has ever been in a workplace environment that is becoming ever more inhospitable to workers. I will be working with the WF Board of Directors to ensure the organization is again able to be a leading voice for workers in this country by continuing our programs, revitalizing our website, and maintaining financial stability.

In March 2007, Workplace Fairness was unfortunately required to eliminate its staff for financial reasons, and I had to leave the organization for whom I had worked since 2002. I joined Working America, the AFL-CIO's community affiliate for non-union workers, as Program Director. In the meantime, the WF Board of Directors, and especially President Cathy Ventrell-Monsees, stepped in to oversee the organization's operations and to keep it functioning without paid staff. In December 2007, I resumed work on this blog, Today's Workplace, and our weekly e-newsletter, Workplace Week.

Some recent improvements in our financial situation have made it possible for WF to resume operations, and I am pleased to have the opportunity to rejoin Workplace Fairness at this critical time. Shortly after Workplace Fairness became unstaffed, we learned that the organization's website, www.workplacefairness.org, was a Webby nominee, as a top site in the Employment category. A top priority will be continuing our website's innovation and further strengthening its value as a resource for workers.

We look forward to announcing many more positive developments in the days to come, and thank you for your ongoing support during our most difficult times. I look forward to speaking with many of you personally in the next few months to hear more about what you would like to see Workplace Fairness achieve. We will continue to work with you to ensure that workers have the information they need and a voice in the policies that affect them most.

GINA isn't a new Workplace Fairness staff member, but the first piece of federal legislation protecting workers from discrimination that has come along in quite some time. GINA stands for the Genetic Information Nondiscrimination Act, which prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information, and also prohibits health insurers from restricting enrollment and premium adjustments for health insurance on the basis of genetic information or genetic services. Don't rush out to get those genetic tests just yet, however, as the employment section of the new law doesn't go into effect for 18 months, in order to give the Equal Employment Opportunity Commission time to implement regulations, and for employers to develop policies consistent with the new law.

It's hard to imagine a bill more bipartisan than GINA. The bill (HR 493) passed the Senate by a vote of 95-0 and the House by a margin of 414-1. (Who was that lone House dissenter? Republican presidential candidate Ron Paul, whose Congressional website claims that he "never votes for legislation unless the proposed measure is expressly authorized by the Constitution," and that according to former Treasury Secretary William Simon, he's the "one exception to the Gang of 535" on Capitol Hill." That was certainly the case this time.)

Obviously, with such widespread Congressional support, President Bush had no choice but to sign it, and he did so on May 21, 2008. (See Signing Statement.) In doing so, he noted the absence of Sen. Ted Kennedy, due to a recently diagnosed malignant brain tumor, who had been a driving force behind the bill's passage during the decade that it was under consideration. Kennedy's spokewoman noted, "Today, the President signed what Senator Kennedy calls the first civil rights law of the century of the life sciences." (See Kennedy statement.)

What does GINA do?

GINA prohibits employers from discriminating against their employees on the basis of genetic information (no matter how the information was acquired) in hiring, termination, compensation, and other personnel actions such as promotions, classifications and assignments. It also prohibits employers from requiring genetic testing and from purchasing or collecting genetic information, with a few limited exceptions, such as when it is required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.

GINA also prohibits disclosure of an employee's genetic information, except under the following circumstances:

• upon the employee's request,
• to an occupational or other health researcher,
• pursuant to a court order,
• to a government official investigating compliance with this law,
• in connection with the employee's compliance with the FMLA or state family and medical leave laws, or
• to a public health agency.

When genetic information is received by the employer, it is to be maintained confidentially and disclosed to the employee only.

The health insurance provisions of GINA go into effect in one year, as opposed to 18 months for the employment-related provisions. These provisions apply to group health plans, individual plans, and Medicare supplemental plans. GINA prohibits the use of genetic information in enrollment restrictions and premium adjustments and prohibits health plans and insurers from requesting or requiring genetic testing. However, GINA doesn't prevent genetic discrimination against people applying for life, disability, or long-term care insurance -- other forms of insurance where genetic information may adversely influence a patient's ability to obtain adequate insurance.

Why is GINA necessary?

According to the National Human Genome Research Institute,

Once GINA's protections kick in, in late 2009, employees will feel more confident about taking genetic tests that may help predict whether they will develop certain diseases without worrying whether doing so will make them unemployable and uninsurable. With more individuals taking genetic tests, scientists will have more data allowing them to make the tests even more reliable and useful. While the misuse of genetic information may not be widespread now, with very few cases in the states that currently have antidiscrimination protections, this bill is designed to prevent genetic discrimination from ever gaining a foothold in the workplace.

As the primary House sponsor of the bill, Rep. Louise Slaughter, proclaimed, "Since no one is born with perfect genes, each one of us is a potential victim of genetic discrimination.” (See Slaughter statement.) This legislation will protect all of us, and luckily all of Congress and the President agreed. Now, if we just didn't have to wait 18 months for it to go in effect...but we've already waited over 10 years.

More Information:

Coalition for Genetic Fairness
Human Genome Project
National Human Genome Research Institute, National Institute of Health genetic discrimination page

A recent article in the New York Times caught my eye: Doctors Say ‘I’m Sorry’ Before ‘See You in Court’. It really got me thinking about what would happen to the practice of employment litigation if employers would adopt the same practice. I suspect that it would dramatically cut the instances where employees would sue their employers if more employers could say "we're sorry," when an employee was mistreated. Will this trend take hold with employers the way it's starting to with doctors?

Humans make mistakes, and doctors are no exception. While mistakes can be harmless, they can also be a matter of life or death. The cost of malpractice insurance to cover mistakes has skyrocketed to the point that some doctors have chosen to leave the field altogether. Although there have been efforts to rein in malpractice suits in the name of "tort reform," such efforts essentially amount to blaming the victim, rather than addressing how it is appropriate to compensate those who have lost loved ones or incurred significant pain and distress for their injuries.

Although the rules of evidence in many states prohibit using an apology as an admission of guilt in a legal proceeding, apologies still happen relatively rarely. Once potential defendants in a lawsuit consult with a lawyer, chances are good that they will be told not to say anything about the circumstances of the incident, and especially not to apologize. As the Times article points out,

But according to this article, things may be changing. Some medical practices are experimenting with efforts to disclose medical errors more promptly, and to offer earnest apologies and fair compensation. And while their lawyers may have feared the worst, the sky has not fallen -- not even close.
One hospital among the first to experiment with a full disclosure policy reports a decline in existing claims and lawsuits from 262 in August 2001 to 83 in August 2007.

Why such dramatic results? The lawyers involved with such cases understand that "what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again." This will sound familiar to many employment lawyers who represent employees as well.

Admittedly, employment law is different than medical malpractice. Rarely are the mistakes so cut-and-dried as ones where a doctor removes the wrong body part or sews up a patient after surgery with an object remaining inside. Medical malpractice doesn't involve the question of intent, which is an important element of many types of employment cases. However, any employment lawyer will tell you that there are a high percentage of cases that would settle without any litigation if the boss would just offer an apology and an assurance that what happened to the employee will not happen again to others.

A pro-apology policy doesn't mean an employer can't defend its position aggressively when it feels it has done nothing wrong. In Michigan, where the state hospital system has adopted a full disclosure policy,

A full disclosure and apology policy may be a way to separate the wheat from the chaff, and the very best kind of tort reform: one that actually works to fairly compensate injured plaintiffs and reduce the litigation costs for everyone involved. Now, if some employers and their lawyers would just adopt it as their official policy, we could see just how much those two simple words, "I'm sorry," mean to someone who has suffered a wrong.

One of the shows I liked when I was a kid was Moonlighting, featuring Bruce Willis when he had hair, and the great chemistry he had with Cybill Shepherd. We can forget that album that he released (The Return of Bruno), and especially the fact that I purchased it. But the days when Moonlighting evoked the Blue Moon Detective Agency are long gone, and instead it's all about the people working second and third jobs.

It used to be that one job was enough. If you worked 40 hours a week, you spent the rest of your time with your family and friends, engaged in your community, and were able to have a balanced life. And if you had to work more than 40 hours, you were either paid handsomely for your level of commitment, or at the very least, expected to be loyal to your employer. But it just doesn't work like that anymore -- more and more people are working extra jobs, not because they want to, but out of necessity. But all that moonlighting has consequences that nobody is really talking about.

A recent news article explores the phenomenon of moonlighting, recognizing that
(See MSNBC.com article.) According to Department of Labor statistics, the number of people with a full-time job plus a second part-time job increased five percent between 2006 and 2007 alone, which is a considerable jump in one year.

Moonlighting was something that people who wanted to make career changes did, but it was always a little surreptitious. Some employers banned the practice entirely, fearing that their employees would help the competition, miss work more often, or be unable to give their all to their primary employer. And some employees just didn't tell their employers, fearing that their employers would mind, even if it didn't technically violate any bans. Rarely did you have a situation where moonlighting was conducted openly, with the employer's blessing.

But times have changed. Employees often can no longer get by on just one salary, whether it's because, as former Labor Secretary Robert Reich points out, "wages are falling, adjusted for inflation," or there aren't enough good jobs that allow people to support themselves and their families. Forget about mobility or career changes -- people have to hang onto the jobs they have, in order to survive. And if something bad happens, like sickness or divorce, workers find they will never catch up on one paycheck.

So moonlighting is proliferating, whether employers (or employees, for that matter) like it or not. Employees are out late at night tending bar, and away from their kids doing homework in the early evenings. This also has a trickle-down effect, in that some lower-paying entry-level jobs are now taken by over-qualified people as a second job, which makes it more difficult for teenagers and workers with less education and skill to find jobs. People don't take vacations, because they can't get away from both jobs at once, and they can't afford to anyway. They're tired, stretched to the max, and on a treadmill they can't step off.

Wages aren't going to increase right away, as we have some pretty serious economic problems happening right now in this country. This means that moonlighting is a phenomenon we're going to have to get used to. Employers are going to have to be realistic about the needs of their employees, and be flexible enough to permit moonlighting. Child care options must expand to include hours outside the standard work day.

While every employee hopes that the need to work a second job won't last for very long, until we start electing politicians and enacting policies that ensure we have good jobs and a sound economy, significant numbers of moonlighting employees are likely to be around for the long haul.

As discussed in a prior post, the Department of Labor has proposed changes to the FMLA in a last-ditch effort to satisfy business interests before there is a change in administrations, which could, depending on who is elected, stall business-friendly changes for a considerable period of time. Here's a look at some of the specific changes proposed.

Limiting a workers’ ability to use their accrued paid leave to cover their unpaid FMLA leave.

Because FMLA leave is unpaid, many workers who otherwise could not afford to take leave rely on the ability to use their paid leave, such as sick leave, vacation leave, and paid time off (PTO). Being unable to afford to take unpaid leave is the most common reason that workers who qualify for and need FMLA leave do not take it. Some workers are already encountering problems utilizing accumulated leave to maintain their family’s financial stability during a time of need, with employers forcing their employees to jump through all the hoops to qualify for FMLA leave, or attempting to impose notice restrictions not required by the FMLA. Employee advocates oppose changes that would make it even more difficult for employees to use accumulated paid leave while simultaneously qualifying for FMLA leave.

Increasing workers’ requirements for providing notice when they need to take leave.

Under the proposed regulations, workers will have less time to provide notice and will be required to provide their employer more information than previously required when requesting leave. Workers who fail to meet these requirements could have their FMLA leave delayed or denied.

The current notice requirements ensure that employees in a situation where their first priority is their own health or a family member’s health can still benefit from FMLA protection. In some situations, it is simply not realistic to expect an employee to provide notice in advance of their absence. The current requirements reflect this reality, while the proposed changes would cause employees with a legitimate FMLA-qualifying need to be denied leave and even face disciplinary action, due to a failure to comply with the notice requirements.

Changing communications provisions which would allow employers to speak directly to workers’ health care providers and allowing them to do so in some circumstances without a release of confidentiality from the worker.

Employers now must follow a two-step process to clarify information that is part of the workers’ FMLA medical certification. Employers first must obtain the employee’s permission to talk to his or her doctor, then must have a medical professional talk directly with the employee’s doctor. The proposed guidelines would allow an employer to contact an employee’s health care provider directly after obtaining permission from the employee. Permission from the employee is not required if the employer is attempting to verify that the employee actually had the doctor fill out the medical certification.

The proposed change that would allow employers without medical training to directly contact an employee’s health care provider is one that provoked significant outrage among workers. In a number of instances, employers have tried to breach the current requirement that communication occur only between medical providers, or have used impermissible means to try to obtain medical information. The proposed changes would further facilitate direct employer contact without permission.

Workers are also very concerned about the consequences of allowing their employers access to sensitive and confidential medical information. Those with mental illnesses and medical conditions which carry a social stigma and/or raise questions about an employee's ability to do the job fear even more difficulty with their employers and coworkers if this provision is altered. Some employees are already using personal leave, rather than attempting to qualify for FMLA leave, in order to prevent their employers from delving into their medical history.

The current requirement should stand, as allowing non-medical personnel to make inquiries of an employee’s doctor will lead to widespread violation of employee privacy, and even more disputes between employees and employers over whether leave is medically necessary.

Requiring more frequent medical visits for workers and/or additional medical certifications from their health care providers.

It is already burdensome in some cases for employees to obtain the required medical certification, especially for employees with chronic, lifelong illnesses where the diagnosis and severity do not significantly change from year to year. Increasing the frequency with which employees must visit their doctors and provide medical certification will only make it more costly and burdensome for employees to comply with the requirements to obtain FMLA leave. Instances where a worker's condition doesn't change from year to year, yet the FMLA-required certifications are rejected, are relatively common, as are instances where additional medical visits are already being required, due to a dispute over the language used in the employee’s medical certification.

We live in an era of skyrocketing medical costs, increased co-pays, and a growing number of employees without health insurance. Making employees visit their doctors twice a year, when such visits may not be medically necessary nor logically required, will make it even harder for employees entitled to FMLA leave to actually use it.

Altering current rules about FMLA leave and employers’ attendance policies to count FMLA leave against perfect attendance awards.

This proposed change would penalize employees for FMLA-related absences which are not any fault of their own, and cost employees money in those workplaces which provide a financial incentive for attendance awards. Some are already reporting conflicts with attendance policies when they use approved FMLA leave. However, those employees whose employers follow current law can rest assured their absences will not be used against them.

The comment period has now ended, as of April 11, with thousands of organizations and individual employees submitting comments. Now the ball is in the Department of Labor's court, with the rights of employees hanging in the balance. Will the scale tip to favor employers' interests? It would hardly be a surprise. However, thus far in this Administration, no significant changes have been successful, so it will be interesting to see whether the internal and external forces which have staved off changes over the last several years will be strong enough to prevail before the November election.

[Please note: some of this post was excerpted from comments I prepared on behalf of Working America that were submitted to the Department of Labor. However, any opinions represented in this blog posting are my own, and do not represent Working America, my current employer.]