Legal Briefings

SUPERVISOR SAYS SORRY FOR BOORISH BEHAVIOR
Jacqueline Lee overheard her supervisor, Don Egge, discussing his desire for her to begin wearing her “spring outfits,” describing her and another employee as “here come the jugs” and discussing another employee who was “banging someone.” Lee reported Egge to HR. HR’s investigation confirmed Egge made these comments. Egge apologized to Lee, acknowledged his words were not appropriate and promised it would not happen again. He further promised not to retaliate against Lee. Because there were no other available positions, HR asked Lee to return to work as Egge’s subordinate. Dissatisfied with HR’s response, Lee resigned from her position. That same day, Egge was suspended for two weeks without pay. Lee sued the company for fostering a hostile work environment. The court found the company not liable on two grounds. First, under the law of the Seventh Circuit, a single incident does not create a sexually hostile work environment unless it is tied to physical violence or the direct solicitation of sex. Egge’s conduct, while boorish, was not directed to Lee (she overheard the conversation) and was not severe enough to create a hostile work environment. Second, the company took appropriate remedial action. It conducted a prompt and thorough investigation, elicited an apology from Egge and his commitment not to retaliate or engage in further harassment, and suspended Egge for two weeks without pay. Lee v. Dairyland Power Cooperative, No. 17-cv-50-wmc, 2018 WL 1401274 (W.D. Wis. March 20, 2018).

IMPACT: Not all offensive conduct creates a hostile work environment. And while complaints of harassment are on the rise, employers can protect themselves from liability by enforcing well-crafted sexual harassment policies.
 
EMAILING EMPLOYEES ON FMLA LEAVE
Sonja Nowlin was a sales representative for Novo Nordisk Inc. Nowlin took intermittent FMLA leave to care for her ailing father. While on leave, Nowlin received two emails from Novo requesting that she return damaged drug samples. Novo did not require Nowlin to respond while on leave. Upon her return to work, Nowlin mailed the drug samples to Novo. Five months later, Novo fired Nowlin for failing to properly document her sales calls on days she was supposed to be working. Nowlin sued Novo under the FMLA, alleging Novo interfered with her right to FMLA leave and retaliated against her. The U.S. Court of Appeals for the Sixth Circuit rejected Nowlin’s FMLA claim. The court recognized that while multiple attempts by an employer to contact an employee on FMLA could constitute unlawful interference, two isolated emails did not rise to this level. The court also rejected Nowlin’s retaliation claim because she was fired for a well-documented, legitimate reason. Nowlin v. Novo Nordisk Inc., No. 17-5507, 2018 WL 1805141 (6th Cir. Feb. 28, 2018).

IMPACT: Employers should be wary of contacting employees on FMLA leave and demanding the completion of work tasks. Small, isolated communications that do not demand responses may not be illegal, but employers should do their best to refrain from making any work request.

Rachel L. Schaller and Daniel Saeedi are attorneys at Taft Stettinius & Hollister LLP. To comment, email editors@workforce.com.