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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- OLDER EMPLOYEE REPLACEMENT
- AMERICANS WITH DISABILITIES ACT (ADA) - ESSENTIAL JOB DUTIES
- SEXUAL HARASSMENT REPORTING
- TIP OF THE MONTH
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OLDER EMPLOYEE REPLACEMENT
The Eighth Circuit Court of Appeals had an opportunity to reaffirm its position on whether a prima facie case of age discrimination can be established when one is not replaced by someone substantially younger. At issue was the case of a stockbroker, who was replaced by someone who was four years older. If the replacement employee is older, then an employee, to establish a prima facie case, must show that the replacement worker was a mere subterfuge to protect the employer from liability under the Age Discrimination Employment Act. Morgan v. A.G. Edwards & Sons, Inc. (8th Cir. 2007).
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AMERICANS WITH DISABILITIES ACT (ADA) - ESSENTIAL JOB DUTIES
Last month we discussed several positions approved by the Eighth Circuit Court of Appeals in a case involving disability discrimination. One must remember that a disabled individual must be able to perform all essential job duties or functions with or without accommodation to claim discrimination. Although it is much easier for the employer to meet its burden if the employer has job descriptions that specifically spell out most of the essential job functions, the Court noted that evidence of whether a particular function is essential includes, but is not limited to:
- the employer's judgment as to which functions are essential;
- written job descriptions prepared before advertising or interviewing applicants for the job;
- the amount of time spent on the job performing the function;
- the consequences of not requiring the incumbent to perform the function;
- the terms of a collective bargaining agreement;
- the work experience of past incumbents in the job; and
- the current work experience of incumbents in similar jobs.
Rehrs v. The Iams Company (8th Cir. 2007).
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SEXUAL HARASSMENT REPORTING
All states have laws similar to Title VII, but some of them interpret their statutes to be significantly more onerous to employers than Title VII. As you recall, under Title VII, an employer has an affirmative defense against the actions of a supervisor if it can show that:
(a) it exercised reasonable care to prevent and promptly correct sexual harassment with a good policy and training; and
(b) the employee unreasonably failed to take advantage of the preventive or corrective measures provided.
In Bush v. Penske Truck Leasing Co., D.C. Minn. 2007, the Federal Court had to look at both the provisions of the Minnesota Human Rights Act and Title VII. The District Court followed Minnesota courts' decision, determining that the victim of sexual harassment has a duty to follow that procedure to preserve a claim of sexual harassment. Moreover, it confirmed that a claim is defeated if the sexual harassment policy and its reporting were not followed by the employee. This is true even though the policy was only contained in a 43-page handbook. The Court stated that this is sufficient publication, as it is not unreasonable for the employer to ask the employee to become familiar with such a short document, particularly because the sexual harassment policy was noted in the table of contents with a specific page reference. In addition, the case highlights the importance of having an employee sign a document representing that he/she has read the handbook.
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TIP OF THE MONTH: In determining whether an employee's behavior is sexual harassment, intent is not relevant in making a determination. All that matters is whether the impact of the behavior creates a hostile environment. Statements, such as, "I did not mean anything by it," are not a defense, although they may significantly impact the discipline or warning provided the employee.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Richard Burns, Tom Torgerson, Rob Merritt and Gabe Johnson.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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