Breaking even at the Supreme Court
The Supreme Court last month issued
several labor law decisions, clearing up some messes and
creating several others. A couple of decisions will affect most
employers, large and small.
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The National Labor Relations Board
extended those rights to non-union employees in 2000, and a
federal appeals court earlier this year affirmed that ruling.
Yesterday, the Supreme Court decided not to change those
rulings, effectively leaving the NLRB decision as the law of
the land.
So, if you are interviewing an employee
about anything that could result in disciplinary action, and he
requests that a co-worker be present, grant the request or
terminate the interview. Fortunately, most employees —
like most employers — are not aware of this requirement.
And employers do not have to tell their employees that they
have this right. Just be aware of it.
In a unanimous show of sanity, the Court
also ruled that an employer can refuse to hire a disabled
applicant under the Americans with Disabilities Act if his
disability poses a direct threat to the applicant’s own
health or safety. In the case before the Court, Chevron refused
to hire an employee with hepatitis because exposure to
chemicals in the workplace could make the condition worse.
Finally, there are time limits under the
Civil Rights laws, usually 180 to 240 days to file a charge of
discrimination. Congress decided years ago that discrimination
claims should not be brought after they had become stale.
Nevertheless, over the years, courts have developed the
doctrine of “the continuing violation.” Simply
stated, the courts have said that if an employee files a timely
charge of discrimination, he can bring up old acts of
discrimination if they are part of a “continuing
violation.”
The Supreme Court has unanimously rejected
that theory for discrete acts of discrimination — like
denial of a promotion, discipline for some infraction of
company rules, and so forth — which should have been
complained of when they occurred. Only claims of hostile
environment can give rise to a charge of a continuing
violation. Therefore, employees can complain about harassment
that has occurred in the past and continues to create a hostile
work place, but they cannot bring up old, alleged acts of
discrimination affecting more concrete working conditions, like
pay and benefits.
So, what has the Supreme Court taught us
today? First, that employers cannot ask employees whether they
stole something, hit someone, or broke something without a
co-worker present if the employee asks for the
“representation.” If an employee asks, grant the
request. You do not, however, have to delay the interview or
allow an outsider — like an attorney — to
participate.
Second, under the ADA, employers can take
into account that employees are not always properly concerned
about their own safety. Employers can consider the
employee’s safety, even if the employee is not at all
concerned, in making a decision concerning the employee’s
qualifications.
Third, employers do not have to litigate
stale claims of discrimination. If an employee complains about
discrimination, he cannot bring up stale claims to support his
current charge or litigate those claims as part of a
“continuing violation.”
My father was a horse player who used to
say: “I had a pretty good day at the track today. I broke
even.” Employers broke even at the Supreme Court.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollman-law.com has articles, sample policies, news and other
information on employee/employer relations.
