Suits In The WorkPlace

Old, Bold, Pilots, Part II

     Following up on a previous post about the mandatory retirement age for commercial and corporate pilots, a federal court ruled that there is no triable issue of age discrimination when a company forces its pilots to retire at age 60.  EEOC v. Exxon Mobil Corp., No. 3:06-cv-1732 (N.D. Texas April 28, 2008) 

     The employer, Exxon, maintains a fleet of private aircraft, including nine sophisticated jets to transfer its employees and corporate guests worldwide.  At the time the case was filed, Exxon's internal policy barred pilots from flying its aircraft after age 60, and it forced pilots to retire when they reached that age.  The policy mirrored the FAA's age-60 rule, which grounds commercial pilots of passenger aircraft at the same age (Exxon has amended its policy to mirror the recent statutory mandated retirement age of 65.)

     The EEOC sued to invalidate this policy on behalf of six pilots who were forced to retire at age 60.  Exxon asserted a bona fide occupational qualification ("BFOQ") defense, based on its claim that the age limit was reasonably necessary to the essence of its business. 

     Exxon's reliance on the FAA rule to support its policy is justified where the rationale asserted by the FAA for grounding pilots at that age is readily applicable to the world of corporate jet flying.  The EEOC attempted to argue that the duties of commercial pilots and corporate pilots were so different that age could not be a BFOQ for the Exxon group. 

     Notwithstanding the fact that flying a corporate jet is frequently even more demanding than flying a larger and more stable passenger airliner, the EEOC tried to argue a distinction based on the differences between the airplanes.  The Commission pointed out the differences in the lavatories on the airplanes, the type of coffee provided on board and the towels used on the plane.  Why on earth the Commission would think that would be convincing evidence in an age discrimination case about flying a jet is beyond me; I suspect what it really did was point out the weakness of their arguments in the areas where it mattered.

     The court would have none of it, noting that there was no material difference, at least for purposes of this inquiry, between the planes used by Exxon and the planes used by commercial airlines.

    The result of this is not surprising; but this is one of the few areas where age may be a BFOQ.  We're going to see more of these kinds of age-related claims as our older workforce begins to push the edge of the envelope in areas like flying, vehicle operation, and the like. 

An Armed Workforce Is a Polite Workforce?

    Starting at the beginning of July, managers and employees in Florida will have even less reason to hang around out in the parking lot after shift change.  Florida residents, who typically have to worry about heat during the summer months, will now have to worry about people packing heat, at least in their workplace parking areas. 

     A Florida law that takes effect on July 1 will require most Florida public and private employers to allow employees and customers to bring lawfully possessed guns onto the employer's property.  The only caveat is that your assault rifle has to be locked inside or locked to your pick-up truck of choice in the parking lot.  Even better, employers may not ask their employees (or their customers) whether they are keeping guns in their cars, search the cars for a gun, take action against an employee based on statements from coworkers about the possession of a gun in the parking lot, or take action against anyone who whips out their Beretta, as long as the gun is never exhibited on company property for any reason other than lawful self-defense.

     The new law does not apply to school property, correctional institutions, nuclear power plants, airports or defense contractor facilities, oil refineries, or other places where possession of a gun is prohibited under federal law or federal government contract. 

     I suspect the folks at Disney World, Sea World, and the Universal theme parks around Orlando are perhaps a tad nervous about this legislation.  A similar law was enjoined in Oklahoma recently on the grounds that OSHA preempted it.  Stay tuned. 

More Racial Harassment Guidance

    Following up on the slave driver entry below, a case from Pennsylvania, and affirmed by the Third Circuit, provides another example of the limitations on racial harassment or discrimination claims.  In Harris v. Cobra Construction, the court was confronted with a situation that, on its face, appeared to be a likely one for trial instead of disposal by summary judgment.  The owner of a company waved a sawed-off shotgun at two of his black employees, and then pointed it at a union business agent, telling him to get off his jobsite.  The owner then turned to the two plaintiffs and asked, "What are you two black *******s looking at?  Now, get back to work."

     Both the district court and the court of appeals found that the claim could not go forward because there was no evidence that the owner's behavior, including his reference to race, was directed towards the two by-standing employees as a result of racial animosity or with the intention to discriminate against them as a result of their race.  They were not singled out or threatened based on their race, but instead, on their status as witnesses to an argument between the owner and the business agent.  The fact that the owner identified their race in the course of threatening them, without more, did not convert the threat from one of anger to one of racial discrimination.

     The court noted that the case might have been different if the owner had made his racial remarks in the context of discussing the plaintiff's work performance or while hiring, firing, demoting or promoting employees.  Instead, under the circumstances, the remark was, at worst, a stray remark in the workplace that could not support a claim of employment discrimination, or a claim of hostile environment. 

     You have to wonder how much further down the path the employer would have had to have gone in order to get a different ruling.  What if he had pointed a shotgun directly at the two and referred to them using a racial slur, rather than just identifying them as "black"?  In any event, the case again notes that the bar for these kinds of complaints can be higher than people might think initially.

Black Sabbath

    A recent case (EEOC v. Texas Hydraulics Inc., No. 06-cv-161 (E.D. Tenn. April 14, 2008)) out of Tennessee federal court should raise some warning flags for employers dealing with religious accommodation issues.  The case contains some troubling language about burdens of proof under Title VII, in the context of an employee who not only refused to work on a Sabbath, but who also claimed that his religious beliefs precluded him from getting anybody else to work in his stead. 

      The employee/plaintiff worked for the employer for some ten years without significant issues.  His religious beliefs prevented him from working from sundown on Friday to sundown on Saturday.  The company was able to accommodate this belief for the most part, although it shifted the employee from one department to another on one occasion so that he would be able to avoid Saturday work.  However, economic circumstances ultimately required the employee to work on a Saturday, and the trouble began in earnest.

     The key issue here revolves around an employer's duty under Title VII when confronted with a conflict between the employee's religious beliefs and the employer's work requirements.  Specifically, the employer has a burden of showing that it cannot reasonably accommodate an employee without an undue hardship.  The requirement has two elements--what actions the employer took to accommodate the employee's religious beliefs; and whether these proposed accommodations would constitute an undue hardship to the employer.  This case hinged on the first element and the court wrote ominously that "both the reasonableness of an offered accommodation, and the amount of effort that an employer put into determining" whether such an accommodation was possible are factors to be considered. 

     In this case, the employer tried to get the employee to find a replacement.  The court ruled that this was not an attempt at reasonable accommodation because the employee had already indicated that it would be a violation of his religious beliefs for him to make someone else work in his stead on the Sabbath.  The employer also proposed trying to be lenient with the plaintiff's accumulation of absences in the hope/expectation that Saturday work would eventually fade away.  The court rejected this out of hand as a reasonable accommodation, commenting that a "wait-and-see posture is no accommodation at all." 

     The point for practitioners to note is that an employer must deal with the requirement that it offer or at least contemplate accommodations that will pass initial muster as reasonable, before it can get to the undue hardship part of the analysis.  In this case the court said that the employer could have compiled a list of employees qualified to substitute for the plaintiff and asked them if they would be willing to switch shifts or substitute.  The employer could also have posted a notice asking if any employee would be willing to substitute for the plaintiff.  Either one of these things would have constituted a reasonable attempt at accommodation, and would have allowed the employer to get to the much easier part of the analysis regarding undue hardship.  For example, had the employer asked qualified employees if they were willing to switch with plaintiff for his shift and none accepted, then the employer could have readily argued that forcing someone to work in plaintiff's place would have been an undue hardship.  This argument would almost certainly have been sustained by the court.

     Instead, the court found that the employer did not make a good faith effort (or reasonable effort) to accommodate its employee, as required by Title VII.  As a result, this case is headed to trial.  The lesson here:  when someone requests such an accommodation for religious beliefs, do not sit back and propose half-hearted or unworkable solutions.  The employer has an affirmative duty to try to solve the problem with the employee before claiming the solution is simply too difficult.  A failure to do so initially effectively denies the employer a defense down the road.