- Sexual Orientation Discrimination
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
What Motivates You?By: Paul Ebeltoft
In the HR world, as in life, there are many reasons to take action. In HR, you can decide to hire someone because of their credentials or because of their personality. In life, you can decide to lose weight to avoid buying a new wardrobe or to promote heart health.
Sometimes there is one reason to do something. Sometimes there are multiple. But in HR, you have to consider whether your stated reasons for acting can be interpreted in different ways, one legal and one not.
This is not “mixed motivation” analysis in the sense that both a discriminatory motive and a nondiscriminatory motive are present. What I am suggesting is that HR must be alert to circumstances where a single motivating factor could be interpreted in two different ways. Failing to understand the distinction has caused trouble for Dr. Angela Ross, an orthodontist from Minnesota in the case of Nicole LaPoint v. Family Orthodontics, P.A. MN Ct. of Appeals A15-0396, December 14, 2015.
Here are the facts:
Dr. Ross had a job opening. Nicole LaPoint applied. The two interviewed. It went well. LaPoint was offered the job and accepted. At the time she accepted, LaPoint was pregnant. She was something less than three-months along and had not told her family about the baby on the way. None-the-less, after the offer and acceptance, LaPoint confided in Dr. Ross that she was due to deliver about six months after her start date.
Dr. Ross told LaPoint that her clinic’s policy was to allow six weeks or less of pregnancy leave. LaPoint said that she had gotten 12 weeks for her first child while employed elsewhere but would consider taking less leave. The next day Dr. Ross rescinded the job offer.
Notes by Dr. Ross on LaPoint’s application show that, at the time Dr. Ross rescinded the offer, she was concerned about the length of leave sought by LaPoint. “[W]ill 3 mos maternity be too disruptive? Most [of my other hires] took 6 wks[.]”
When LaPoint sued, Dr. Ross stated that she withdrew the job offer due to her concern about the difficulties the clinic would experience if LaPoint took more than six weeks of maternity leave, not due to LaPoint’s pregnancy. The trial court found that Dr. Ross and three of her employees “credibly testified as to the disruption a lengthy leave of absence would cause the clinic.”
The Court of Appeals viewed the same facts differently. It swept aside the trial court ruling in favor of Dr. Ross. LaPoint’s need for leave was due entirely to LaPoint’s pregnancy, the Court of Appeals said. Dr. Ross’s concern for the length of the leave could have been handled in other ways, such as offering the job contingent on accepting leave of no longer than six weeks, Instead Dr. Ross rescinded the offer. This is evidence, the Court of Appeals found, that Dr. Ross discriminated against LaPoint on the basis of pregnancy in a purposeful, intentional, and overt manner. (see footnote below)
The HR Takeaway
When you are articulating reasons to take a job action, step out of your company role. Put yourself in the shoes of the person affected. Ask whether a reasonable person could consider your company’s motivation to be unlawful. If so, be alert to alternatives.
Dr. Ross, it seems, could have satisfied the Court of Appeals by stating exactly what length of time LaPoint could have been absent yet not disrupt the work of the clinic. The Court of Appeals also would have taken into account, it seems, an effort on Dr. Ross’s part to contact LaPoint to further discuss the issue of leave. Dr. Ross did neither. Instead she decided that her reason was good enough and looked for a different, non-pregnant employee.
In sum, remember that, when a lawsuit happens, the court will consider your employment decision from all points of view, yours and that of the other side. Take all reasonable actions to enable your company to show that its motivation is a bonafide business decision and that alone.
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Reprinted with permission from an article submitted for publication in the January, 2016 Southwest Area Human Resource Association newsletter.
In fairness to the decision, but outside the scope of this article, it should be noted that Dr. Ross also was upset at not being told during the interview by LaPoint that she was pregnant. This is an improper reason to rescind a job offer, the Court of Appeals said. To find otherwise would allow prospective employers to punish applicants for failing to disclose a fact about which the interviewing employer could not lawfully inquire.