Maryland Business Law Blog

The Perils of Hiring for "Fit" or "Culture"

Posted by Edward Sharkey on Mon, 09/07/2015 - 04:00

Did you ever make an employment decision based on a candidate's "fit" with your culture? Did you ever ask yourself, "Can I see this person here?" Or rely on a gut feeling? Did you ever assess an employee for promotion by thinking, "How well does this person get along with the team? Will they fit with the rest of the leadership?"

Intuitively, this seems like a good idea. Businesses want to foster a workplace where people get along and enjoy working together. Where employees respect their supervisors. Increasingly, however, such hiring criteria are creating legal headaches for businesses.

A female employee recently left her job at Twitter and filed a lawsuit
lawsuit claiming that she was passed over for a promotion on the basis of "fit." The employee claims that Twitter used a promotion process that leaves women at a disadvantage. Twitter allegedly used a "shoulder tap process," where instead of advertising promotion opportunities to all eligible employees, they offered the opportunity to select individuals they thought might be a good fit for the job.

The employee contends the process led to gender discrimination, in that a majority of the leadership positions within the company were held by men. And men have a general tendency to select other men for promotions because they got along with them better. Being a high profile business, Twitter has come in for months of public scrutiny and criticism because of the lawsuit and the demographic makeup of its workforce.

Can businesses still consider "fit" when hiring and promoting employees? I will tell you what we tell clients: every business's risk profile comprises multiple factors, and it falls along a spectrum. If you are Twitter, and you employ a lot of "dudes" in STEM, using "fit" as a hiring criteria is risky. If you are Sam's Local Wholesale Paint Co., and you have a diverse group of employees handling chemicals in an odoriferous warehouse, you can hire whomever fits best with your team.

Supreme Court: The EEOC Can't Just Sue You Without Trying to Work it Out First

Posted by Edward Sharkey on Mon, 07/20/2015 - 04:00

In a unanimous decision, the Supreme Court affirmed that the EEOC must try to work out disputes before it simply sues an employer. By statute, the EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The Court affirmed that the EEOC has “extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” But such broad latitude does not overcome the “strong presumption” that a court can review and reject the EEOC's efforts if they are not sufficient.

Nonetheless, the Court’s ruling provides for a “relatively barebones” judicial review. The standard merely requires the EEOC to inform the employer about the nature of the claim and “engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” The Court rejected the employer's argument that the EEOC should be held to a higher “good faith” standard.

The decision has been characterized as a “setback for the Obama administration,” and a “significant win” for employers. Without a good faith standard, however, the obligation to negotiate is pretty meaningless. To challenge a hair-trigger lawsuit by the EEOC, employers must show, by “credible evidence” that "the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim.”

The take away for employers? The EEOC does not have to do too much talking with you before it can sue you. So do not be too quick to terminate negotiations if you believe you have a problem.

Can You Fire An Employee for Hitting a Coworker? What If He Was Harrassing Her?

Posted by Edward Sharkey on Thu, 05/07/2015 - 04:00

Employers can get into trouble if they discharge an employee after he or she has complained about workplace sexual harassment. If the employee proves the termination was retaliation for the complaint, the business can be liable. This is true even if the original complaint was unfounded. A Pennsylvania court recently considered a retaliation case with a twist: an employee hit her coworker, and she claimed it was because of harassment.

In Speed v. WES Health System, an employee had filed various complaints about a coworker for sexually harassing her. Subsequently, the employee slapped the coworker. The business terminated the employee.

The employee sued, claiming that the termination was retaliation for her complaints. The business moved to dismiss on the ground that she was terminated for the physical attack, which is a valid basis for termination. The court held that, because the employee had filed complaints about her coworker before the slap, she was entitled to pursue her claim for retaliation.

In its order, the Court made it clear that it will examine these types of incidents in a factually intensive manner. Such altercations will be evaluated in the context in which they occurred. Here, the employee, along with other coworkers, had complained to her employer multiple times about her coworker’s conduct. The company allegedly failed to take any action to remedy the situation.

The employee alleged that she struck her coworker as a reflex after her alleged harasser tried to grope her again. Both the employee and the coworker were fired the next day. The employee argued that she was not fired for the violent act, but in retaliation for her harassment complaints.

In considering the employer’s motion to dismiss, the court found that even though a substantial amount of time had passed between the employee’s complaints about harassment and the altercation, a reasonable jury could conclude that she was fired in retaliation. It would be for a jury to decide whether the slap was an appropriate response to the coworker’s alleged actions.

The judge was careful to distinguish this case from another where an employee slapped a coworker for making an offensive comment. It noted that there is a substantial difference between an employee defending herself from a physical groping and responding violently in protest of comments.

The EEOC recommends that courts consider claims from the employee’s perspective, so employers should take note of the circumstances surrounding similar altercations. An important factor to the courts in such situations is also whether the employee has filed previous complaints.

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