Is Your Firm a Hostile Work Environment? and Other Employment Law Violations

Episode Notes

Transcript

The Florida Bar Podcast

Is Your Firm a Hostile Work Environment and Other Employment Law Violations

10/22/2019

 

[Music]

 

Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and legal practice management to help you run your firm, brought to you by The Florida Bar’s Practice Resource Center. You are listening to Legal Talk Network.

 

[Music]

 

Christine Bilbrey: Welcome to The Florida Bar Podcast, brought to you by LegalFuel: The Practice Resource Center of The Florida Bar on Legal Talk Network. We are so glad you are joining us. This is Christine Bilbrey. I am a Senior Practice Management Advisor at the Bar and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.

 

Karla Eckardt: Hello. I am Karla Eckardt, Practice Management Advisor at The Florida Bar and co-host of today’s podcast.

 

Our goal at The Practice Resource Center is to assist Florida attorneys with running the business side of their law practices. We focus on a different topic each month and carry the theme through our website with related tips, videos and articles.

 

Christine Bilbrey: So this month we are focusing on HR risk management in the law firm setting and joining us to discuss this important topic is Deborah Stephens Minnis.

 

Deborah Minnis is a shareholder with the Ausley & McMullen Firm here in Tallahassee. She has over 30 years of administrative law and governmental experience. She worked as an Assistant Attorney General representing state agencies for over six years, handling civil rights and employment discrimination litigation matters.

 

Deborah has worked with both the Leon County and Gadsden County School Boards, handing matters of employment and civil rights issues.

 

Her current practice areas include advising clients on complying with the wage and hour laws, the Family and Medical Leave Act, and employment discrimination laws. She is an experienced litigator and represents private and public sector clients before state and federal courts and state administrative agencies.

 

She has also taught as an adjunct professor at the Florida State University College of Law.

 

Welcome to the show Deborah.

 

Deborah Minnis: Thank you. I am glad to be here.

 

Christine Bilbrey: So Deborah, tell our listeners a little bit about yourself and how you came to specialize in labor and employment law.

 

Deborah Minnis: As you indicated earlier, I started my legal career with the Attorney General’s Office here in Tallahassee and after about a year-and-a-half I was moved into the employment law section. I found the work very interesting and very challenging and decided to continue down that path, even after I left the Attorney General’s Office and went into the private sector.

 

Karla Eckardt: Interesting. It’s also something that unfortunately a lot of attorneys, especially those running solo and small firms, are not specialized in, so that’s what we want to talk about today. Employment law is not limited to a single body of law. It’s spread across a number of federal state and local laws and constantly changing.

 

So for purposes of this discussion, we wanted to focus mainly on anti-discrimination statutes. I guess the big one we can start with is Title VII.

 

Deborah Minnis: That is correct. Title VII is the one that most people are familiar with, because of the sexual harassment, sexual discrimination piece. However, it also covers race, national origin, color and religion, and in Florida there is also a piece of marital discrimination that the Florida Civil Rights Act has added.

 

Christine Bilbrey: So what are some of the biggest mistakes that you see employers making that violate Title VII and then leave them open to legal liability?

 

Deborah Minnis: Some of the bigger mistakes that I see, because the biggest area now is the hostile work environment area and because it’s not a direct, what I call direct discrimination, you are not called using a racial epitaph or inappropriate terminology for a female or a male employee, but the atmosphere in the job office is just very harsh or very hostile. In a lot of instances employers don’t realize that it’s not a matter of getting used to it or getting over it, they may need to step in at some point and take action to make it stop happening.

 

Karla Eckardt: And before we get on to the specifics of sort of sexual harassment or hostile work environment, I feel like a lot of law firms, small and medium-sized law firms might say, well, that doesn’t apply to us. When do these federal anti-discrimination statutes apply, and more specifically Title VII to specific employers?

 

(00:04:56)

 

Deborah Minnis: Title VII applies anytime you have 15 or more employees during a 20 week period in the current year or the preceding year. It doesn’t have to be a consecutive 20 week period, but if during that year you have got 15 or more employees who are covered by most of the employment discrimination laws, age discrimination is 20, but everything else is 15, including the Americans with Disabilities Act.

 

Christine Bilbrey: So take us through what constitutes a hostile work environment?

 

Deborah Minnis: Well, one of the key factors, especially in the sexual harassment arena, is that the cases that get a lot of publicity are what I call the sexually motivated cases, where someone is grabbing someone else or asking them out, implying if you don’t do certain things for me, then I am not going to promote you or I am going to fire you, but it can be short of that.

 

It can simply be an environment where one sex is treated more hostile than the other, belittling language, yelling at that particular group, or making their whole work environment difficult simply because of their gender. And the reason I am not just saying women is because it can also be a hostile work environment for males. It does not just go one way.

 

What we hear about most are the women who are sexually harassed or who is subject to a hostile work environment, but it can be males as well. And what happens with those situations is that the environment has to get to the point that it is interfering with their ability to do their job, is consistent, is pervasive, so it’s not just a one-off situation where the person said something inappropriate, but there is a certain level that it has to meet in order to be legally viable.

 

Karla Eckardt: So oftentimes we hear about bullying and workplace bullying. Is this a legal claim in US courts or would it fall under hostile work environment. How does that work?

 

Deborah Minnis: If the bullying is pervasive and consistent and meets the criteria and it is based on one of the protected classes, then it could rise to the level of being actionable under one of the discrimination laws. If the person is simply just a bully and they bully everybody, that one is going to be a little bit harder to try to get it to the level of being actionable in court. If they are just an obnoxious person and they are that way with everybody in the workplace, that would probably be a different matter.

 

Christine Bilbrey: Well, we have heard some shocking stories about incidents at firms. Karla and I both worked in law firms before we came to the Bar, but we hear some things that never happened at our firms, but we have heard about an attorney who pretty regularly is throwing objects, office equipment into the wall, or an attorney who had an actual temper tantrum kicking and screaming and attorneys who make their staff cry regularly, and the first question obviously is always, oh my gosh, what did you do? But then we always hear people say, oh, was it a partner or a shareholder?

 

Can you speak to why this is a very dangerous approach deciding how the firm should respond?

 

Deborah Minnis: To me, it’s a dangerous approach because the employer, meaning the firm, is the entity that will be sued if a discrimination claim is filed and it’s the firm that will have to pay whatever the damages or relief is going to be, not necessarily the individual shareholder. So the fact that it is a shareholder does not insulate the firm from being sued; in fact, it may make it even more of an issue, because you have got someone who arguably is in management who is causing the issue.

 

Karla Eckardt: So is there a difference I suppose when the harasser is in management as opposed to a nonsupervisory employee or even a third party, are there different actions in which the employer could be liable or where they are just not liable at all?

 

Deborah Minnis: Absolutely. When you have a situation where it is a co-worker or an independent contractor or someone outside the firm, the liability attaches based on a knew or should have known criteria. So if it’s a situation that management and firm didn’t know about because the person didn’t report it, or they just weren’t aware of it, then you have more defenses to why the action continued or how it got to the level it did.

 

(00:10:13)

 

If the harassment is by a supervisor and particularly a direct supervisor who has some control over what happens to the alleged victims, most courts see it almost as a strict liability situation. If the person can prove that the work environment meets the criteria of a hostile work environment, the courts aren’t really going to care whether you knew or should have known about it. They are going to say you are responsible as an employer for prohibiting that and making sure it doesn’t happen. So it raises the bar.

 

Christine Bilbrey: And when we saw you speak, it was interesting, you included what seemed like a small detail, but it seemed very important that a Title VII trial is always decided by a jury. Why is this important for employers to know?

 

Deborah Minnis: To me, it’s important for an employer to know because basically you have 12 people who don’t know you, don’t know anything about you, don’t know anything about your firm and they are going to be deciding whether you violated someone’s rights or not as an employer or allowed someone’s rights to be violated.

 

And when you think about the fact that in a litigation situation the accuser gets to go first, the employer is always behind the 8-ball, so to speak, because the accuser gets to lay out his or her case first and you are having to come behind that and convince these 12 people that what the person they just heard from said is not true.

 

Christine Bilbrey: And in that situation, so if someone is — they are bringing a claim, so if it’s a hostile work environment, it’s the whole firm. Do they have to prove intentional infliction of emotional distress or is that an entirely separate action?

 

Deborah Minnis: Intentional infliction of emotional distress is actually a separate action. Under the Title VII and other civil rights anti-discrimination laws, there is a section that allows for the recovery of what we call compensatory damages, which will include your emotional distress damages.

 

So for example, if it’s a hostile work environment situation and the person did not lose anything monetarily, they could still request emotional distress damages without having to file a separate intentional infliction of emotional distress claim that would be part of what they could recover as part of the Title VII process.

 

Karla Eckardt: And while we are on this topic, training is subjective. I feel like sometimes people that attend training don’t realize it’s about them. So apart from addressing the issue individually with a person, do you recommend that law firms conduct harassment training overall and what should it include?

 

Deborah Minnis: Yes, I definitely suggest that law firms conduct harassment training. And you are right, a lot of times people say well, I have never done that. I wouldn’t do that to anyone, or like I said before, they think as long as they are not acting sexually towards someone that they are not creating a hostile work environment or they are not engaged in harassment, so I think training is very important.

 

I think at a minimum the training should definitely include examples of what a hostile environment is or could be, an explanation that it’s not just what we used to call the quid pro quo type of sexual harassment, and that the person should be mindful of how they interact with staff and with their fellow shareholders and partners, because it’s not just staff that can sue. Anyone who is an employee of the law firm can sue, and in a lot of law firms even though you are a shareholder, you are also treated as an employee, so there could be suits generated from there.

 

There also should be a discussion on reporting, what to do if you think someone is being harassed or you see someone creating a hostile environment, who the person is at the firm that’s responsible for getting that information so that the situation can be handled appropriately. So there is a myriad of things.

 

(00:14:53)

 

Sometimes when I do training, I will talk to the person who has engaged me and get an idea of what their particular issues may be or situations that they are having at their facility, and I will make sure the basics are covered, but I will also try to incorporate something that’s a little more relevant to what they are actually experiencing.

 

Christine Bilbrey: Can you give us — so if you are doing harassment training, I think a lot of times people need a real world anecdote or illustration, can you give us a hypothetical of something that you have seen where you are trying to get someone to understand?

 

Karla Eckardt: Or a real life situation, just don’t mention names.

 

Christine Bilbrey: No names.

 

Deborah Minnis: Just keep the names out of it is what you are saying.

 

Karla Eckardt: Exactly.

 

Deborah Minnis: I have come across situations where it’s an all-female or predominantly female work situation and one particular person is very outspoken or very willing to share their personal interactions with their significant other, and do so on a fairly regular basis, and it’s pretty offensive to a number of the other people in the workplace. And even though this person is not approaching them sexually, not interested in them sexually, it’s creating a work environment that is very hostile for these individuals.

 

And so in that kind of situation, that is one where you can call someone in to do a training and they cover the basics, but then they make sure they add in that it’s not just if you are sexually interested in the person, but sometimes it can be the kind of conversations you are having; talking loudly with your significant other on the phone about your adventures the night before. So there is a wide range of examples like that that I have had people call me in on.

 

One was a gentleman who liked to joke a lot. He thought it was joking, but a lot of the people, particularly the women in the workplace did not feel that it was very funny, but he did not believe he was engaged in inappropriate behavior because he hadn’t grabbed anybody or propositioned anyone.

 

So those are some of the kind of situations that I have been involved in.

 

Christine Bilbrey: What do you say too, as a lot of things have broken in the news, I have seen men that are interviewed when they are covering stories of this and saying oh, well, I am just never alone in a room with a female now and that’s disheartening, because you would hope that everyone can conduct themselves with a professional behavior, and for women that can really limit your career if now you are not getting any mentoring or one-on-one time.

 

What’s the advice that you would give men that think that now they just can’t ever be alone with a female?

 

Deborah Minnis: What I sometimes suggest in some of my trainings, when I look out in the audience and I see the expression on the men’s faces is that I try to give them a gauge that they can use that I think is helpful. And basically I suggest that if it’s something that you would not want to be said to your mother, daughter, wife or sister, then perhaps it’s something that should not be said. So, that kind of gives them a guide to navigate whether it’s crossing a line or not.

 

It’s not like you said that every interaction between opposite sexes in the workplace is going to be a problem, and in fact the courts have said they do not intend to be a super personnel department, that’s why they — it has to reach a certain level in order for it to be actionable. But I understand their concern about well, where is the line? But I hope that that’s a gauge they can use to measure where their line is.

 

Karla Eckardt: Now, as far as harassment goes, again, sexual harassment claims are the most common, but it’s essentially harassment based on a protected class and there are any number of protected classes in Title VII. What are the elements of a claim, so to speak? We talked about where is the line drawn? Like the harassment has to be unwelcome, it’s not necessarily harassment if an employee and another employee are in a relationship; that may be against company policy, but it’s not necessarily harassment. So what are some of the element of a harassment claim so we can sort of draw a line for people who don’t know where that line is?

 

(00:19:58)

 

Deborah Minnis: You are absolutely correct. Part of the inquiry is whether it is subjectively harassing to the person involved.

 

There is another piece that looks at whether it’s objectively harassing, whether someone looking in from the outside would see the behavior as creating a hostile work environment.

 

And it’s the types of things that I mentioned before, how often does it occur, how pervasive is it, what level of conversation is it, is it intimidating, is it threatening, those are some of the things that the courts look at to determine if it’s getting to the levels.

 

Unfortunately, with a lot of things that involve interaction between individuals, there really is no bright-line test. It’s a combination of all of the information and behaviors and actions and statements that the court looks at to determine if it has met that threshold.

 

And I will give you an example, a case that is one of the seminal cases, the Mendoza case. This was a situation where a gentleman would go around and sniff at this particular person, would stare at them, would sometimes make comments, but because it wasn’t a daily thing and it wasn’t pervasive and it happened on occasions, the court said that that didn’t get to the level that they needed to get involved and take action. So it’s kind of hard to give you that bright-line, but that’s kind of the things that they are looking for.

 

Now, of course there can be a situation where if it’s really severe, I mean if you kidnap someone and lock them in your office, then of course you don’t have to deal with everyday or pervasive, those are situations that go kind of up to the top quickly.

 

Christine Bilbrey: And has that happened?

 

Deborah Minnis: Fortunately I have not been asked about one, but there are cases about it.

 

Karla Eckardt: All right.

 

Christine Bilbrey: If you are a law firm administrator and you are witnessing the behavior —

 

Karla Eckardt: Or a managing partner.

 

Christine Bilbrey: Right, right.

 

Karla Eckardt: Whoever, office manager, whatever you may be.

 

Christine Bilbrey: Yeah, you are in management however, and you are witnessing the behavior, does the person — I feel like so many times the person who is on the receiving end of the harassment doesn’t want to complain. They have a mortgage, they are supporting children and they are like, I just don’t want to derail my career because unfortunately I think a lot of times that’s the end result.

 

Can the person who is the partner or the law firm administrator, can they take action or does the court always have to have the person who received the harassment testify?

 

Deborah Minnis: If a managing partner or someone in the firm witnesses the behavior, they should take action. Now, there are situations where if the managing partner didn’t know about it and the person who is being harassed didn’t tell anybody about it, then the court is going to say well, you can’t hold the employer responsible because they didn’t know.

 

Now, like I said, all bets are off if it is a direct supervisor that’s causing the harassment and if enough is going on that everyone kind of knows that the hostile work environment is there and a supervisor is involved, that is generally not a good thing to ignore and not take action on.

 

But if you are especially a managing partner or office manager and you have witnessed this, then you need to report it and take some action to make it stop.

 

Christine Bilbrey: But there is always that weird situation, because you kind of — if you are the law firm administrator, you are kind of — you are the advocate for the staff, but you are implementing what the shareholders want, and this has happened to me and I know this has happened, it’s come up with other administrators. An employer will come to you and say hey, I don’t want you to do anything, but just as my friend I want to tell you this, and when I was in that situation I said, you know what, I am so sorry, but because of my responsibilities at the firm, I can not do anything.

 

Karla Eckardt: Right.

 

Christine Bilbrey: Is that the situation? I mean I don’t — you feel like you have to do the right thing regardless, even though they are trying to say —

 

Karla Eckardt: Well, you can never guarantee I suppose, you can never guarantee confidentiality. You can respect the person’s wishes, but I can’t imagine.

 

Christine Bilbrey: But down the road if it becomes more severe and then it was something that you didn’t act on and you were aware of it, you have put yourself in a strange and awkward position.

 

Karla Eckardt: Right, right, document.

 

Christine Bilbrey: Yeah.

 

Deborah Minnis: Yeah, your action is what I would recommend is that you cannot not take action. I know there is a double negative there, but.

 

Christine Bilbrey: We understand.

 

(00:25:00)

 

Karla Eckardt: We understand, well, and when we bring that up that’s kind of a separate claim. A lot of office managers or legal administrators or any other member of the staff they’re concerned about retaliation, which is another claim in and of itself.

 

How can you prove retaliation in those instances? How can you show retaliation? What are the elements let’s say or the standards required to bring a retaliation claim?

 

Deborah Minnis: To bring a retaliation claim you of course show that you engage in a protected activity, first of all, and one way to show that is that, one, either you oppose discriminatory or hostile behavior, meaning obviously that you filed an internal complaint with someone that this is going on or I think I’m subjected to a hostile environment or being discriminated against or retaliation can occur after someone has filed a charge with FCHR or EEOC. And that’s basically what they call a participation claim, meaning that you’re participating with FCHR or EEOC in prohibiting discrimination.

 

Once you have engaged in protected activity, if you suffer an adverse employment action, the courts have gotten a little broader with what that means, it’s not just firing, disciplining, terminating, failing to promote. There have been some cases where the person I think in this particular case that person was a single-mom and they moved her from a day shift to a night shift because it caused a hardship for her in getting childcare achieved and the court saw that as an adverse employment action as to her particular situation.

 

Then the third phase of that is to show a connection between the adverse employment action you suffered and the fact that you engage in a protected activity. Timing can be a factor, so if within a day, two days, two weeks, all of a sudden this bad thing happens to you after you’ve engaged in a protected activity, that can get your case moved forward. It may not totally win it for you but it can move it forward.

 

Karla Eckardt: You mean there are coincidences. What? What?

 

Deborah Minnis: I know. Now once you get past three or four months, the courts look at it a little bit harder because that’s kind of getting farther away unless there is some additional evidence. Now, for example, the person says, you shouldn’t have done that to me, and then three months later you get fired. That combo could get the case moved forward.

 

Now, the thing with the retaliation claims is that the courts have said that it’s a but-for proofed patterns and basically what that means is that if there was any other reason that came into play, the retaliation claim is probably not going to succeed, and to give you an idea of the distinction just straight race discrimination cases or what we call mixed motive cases, meaning that even if another factor came into play, if race also happened to be in there, you can move forward with the race discrimination case, but with the but-for claim, it has to be for that reason only. Does that make sense?

 

Karla Eckardt: Yes. I do have a question because I feel like in a lot of — sort of old school firms, the mentality is, well, if they don’t like it they can quit. If the situation is so severe and pervasive that someone is compelled to quit is the employer suddenly, are they free of any liability?

 

Deborah Minnis: No, they’re not, because at that point it would be — the adverse employment action would be a constructive discharge.

 

Karla Eckardt: So, there you go. That’s not an excuse.

 

Christine Bilbrey: Yeah, if you drive them out the door you’re not —

 

Karla Eckardt: Right, right.

 

Deborah Minnis: Yea, the proof of constructive discharge is a little bit high, but it’s not unheard of that if the situation was so bad that even an objective person looking in would have said, hey, I wouldn’t have stayed there either, then yeah, you could do constructive discharge.

 

Christine Bilbrey: I want to pivot the conversation a little bit because something that comes up a lot and it seems just pretty straightforward is firm dress code. But when we saw you talk, it kind of opened our eyes that it’s really a bit of a minefield. How do you address gender nonconformity in a dress code policy?

 

Deborah Minnis: It’s interesting, you should ask that. I just recently had an issue come up not in the employment arena but in a school-type setting where the student was biologically male but identified as female.

 

(00:30:08)

 

And basically even in that area the courts have said that they have the right to dress in the gender they identify with.

 

And when you look at the Eleventh Circuit cases, which is the federal court that the Federal Appellate Court that controls in Florida they do recognize gender non-conforming causes of actions.

 

So what that says to me if you have a male who identifies as female and prefers to dress as a female and you say, no, you can only dress as a male, then basically you’ve discriminated against that person based on their gender, because they are not conforming to the gender you believe they are.

 

Christine Bilbrey: Okay.

 

Karla Eckardt: Particularly relevant today.

 

Christine Bilbrey: Right.

 

Deborah Minnis: So, I would say with dress codes, if you have a dress code for women you have a dress code for men, as long as they are meetings whatever the requirements are of the dress code that they identify with then they are meeting your dress code.

 

Karla Eckardt: Right.

 

Christine Bilbrey: Okay, and I love that we have you recording with us today because a very big case is coming before the Supreme Court today and it’s about LGBTQ workplace rights and whether workplace discrimination based on sex also encompasses gender identity. So I’m not asking you to —

 

Deborah Minnis: No opinions.

 

Christine Bilbrey: Yeah. We don’t need you to tell us how you think it’s going to come, but I want — can you give our listeners a little bit of background on the elements of why this is shown up at the Supreme Court or what it is they are hearing today?

 

Deborah Minnis: My feeling about it is that at this point the circuit courts are in different places. Some are accepting cases strictly on gender discrimination or sexual orientation discrimination, some are like the Eleventh Circuit and it has to be gender non-conforming.

 

So in the Eleventh Circuit if you’re a plaintiff and you file your complaint, you can’t say, well, I’m being discriminated against based on my sexual orientation. The court is going to throw that out. It has to be gender non-conforming.

 

So I think that this is a push to try kind of get it standardized throughout the country because once the — if the Supreme Court issues an opinion that sets out what the standard is, for example, if the Supreme Court says, yes, you can sue based on sexual orientation under Title VII then the circuit courts have to follow that precedent.

 

Christine Bilbrey: And so would that change the current EEOC policy, because it’s our understanding that currently they say that it is illegal to discriminate based on gender identity and sexual orientation.

 

Deborah Minnis: It won’t change their policy. The thing with the EEOC policy is that it — I don’t want to sound derogatory but it is what it is but the courts aren’t bound by the EEOC policies and their interpretations of Title VII and some of the other regulations. As you can see the courts can go off and do their thing based on their interpretation of the statutes and the laws. So it probably wouldn’t affect what EEOC is doing because they tend to do a broader sweep with who they include in their protections. But it could have a ripple effect for some of the federal courts that have dealt with the issue.

 

Karla Eckardt: Now to pivot yet again, there are other and again we’ve already said this, but we’ll keep saying it, discrimination is not only sexual discrimination or sexual harassment or race or color, there’s also the Americans with Disabilities Act, and oftentimes employers don’t know enough about this because they have never encountered it, or they’ve never had someone apply for a position.

 

Again, I am talking in the context of small to medium-sized firms. They may not have had someone request an ADA accommodation or anything like that. So what are some basics that employers should know about ADA accommodations?

 

(00:34:40)

 

Deborah Minnis: Well, first of all, it does apply if you have 15 or more employees and during the 20-week period, as I mentioned before. The thing with the ADA is that it’s not just for people once they apply, but you could have an existing employee whose medical condition becomes a disability and at that point the person may come to you and need an accommodation to perform the essential functions of their jobs.

 

And according to the law and the cases you have to go engage in an interactive process with that employee. So at some point you can request medical information, you can sit down with the employee and discuss what their limitations are and discuss what accommodations may be available. You do not have to give them the accommodation they demand or want, but you do have to offer them a reasonable accommodation that will allow them to perform the essential functions of their job.

 

And the term “essential function” is very important because if it’s just a minor part of what they do, the courts say, well, why don’t you just eliminate that part of it? For example, if you have a receptionist and basically her main duty is to answer the phone and on occasion she may have to run the mail through the postage machine but that’s not an essential function of her job. If she has a disability that she can no longer run the postage, the mail through the postage machine, then you can’t refuse to — or you can’t make her continue to try to do that, does that make sense?

 

Karla Eckardt: Yeah, definitely.

 

Deborah Minnis: Because it’s not a function of the job.

 

Karla Eckardt: Right, and then sort of where we’re jumping around here. We want to cover so much. We can probably talk for the next 10 episodes.

 

Christine Bilbrey: With so many questions.

 

Karla Eckardt: But there is this BFOQ (Bona Fide Occupational Qualification), can you explain to our listeners, what that is?

 

Deborah Minnis: Yeah, those are very tricky. It’s very hard to prove that a particular requirement is a Bona Fide Occupational Qualification. There are some – there are some instances where it could be, for example, if you have someone who is a delivery driver and the package is weigh at least 40 pounds, if that person cannot lift those 40 pounds and lifting 40 pounds is a bona fide occupational qualification for that job then it puts it in a whole different category.

 

Now if you have a delivery service and basically what they deliver or envelopes or mail or things like that and it doesn’t require them to lift those packages except occasionally, I think the employer would be hard-pressed to try to treat the 40 pound lifting requirement is a bona fide occupational qualification.

 

Karla Eckardt: So one of sort of the more clear-cut examples of one a BFOQ applies is actors and actresses. If a particular movie is looking for someone for a very specific role, if they’re looking for a man, they want a man; if they’re looking for a female, they want a female, if they’re looking for someone with blond hair, they want someone with blond hair. So it varies but is BFOQ ever a defense for policies that discriminate on the basis of race or color?

 

Deborah Minnis: Other than in a situation like acting, it’s because you get into the whole artistic interpretation of the work kind of thing, but generally I cannot think of a situation where that would be a BFOQ.

 

Karla Eckardt: Me neither.

 

Deborah Minnis: Yeah, even with teaching or being a professor or childcare, I can’t think of any reason why — you can say, we only want females or we can only have this. Now, I can’t tell you that in religious situations and with churches the courts don’t like to get too far into your religious philosophies. So, there’s kind of a little quirk there sometimes, but just in general, no.

 

Christine Bilbrey: So a senior partner who tells you he only wants female assistants.

 

Karla Eckardt: Yeah, generally it seems like it wouldn’t be allowed in law firms, any kind of BFOQ defense.

 

Deborah Minnis: I can’t see how that would be a BFOQ.

 

Christine Bilbrey: Well, and then here’s another one that’s come up more recently. Body dysmorphia, so it kind of is in — you kind of touched on it in the dress code question but then you also mentioned when we saw you speak previously that this can also be an ADA matter, can you explain why that is?

 

Deborah Minnis: Yes, because body dysmorphia is considered a disability. It is an actual mental condition where the person does not feel that they fit — their body doesn’t fit who they are.

 

(00:40:05)

 

And so the person can be medically diagnosed as having body dysmorphia and at that point it becomes a disability.

 

I will tell you that in 2009, Congress amended the Americans with Disabilities Act and we call it the Amended Americans with Disabilities Act. They couldn’t get more creative than that, and basically the Congress amended it because they were concerned that courts were spending too much time trying to decide what was and was not a disability. So they broadened the definition of what could be a disability.

 

So there are a lot of conditions now that were not disabilities early on that the courts consider disabilities now. Body dysmorphia, of course, I think is probably not a new condition but a newly diagnosed condition if that makes sense and so it falls into that mental emotional disability category.

 

Christine Bilbrey: And so how does a small law firm with all of these different situations that they could walk into if you have 15 employees.

 

Deborah Minnis: Even if you have fewer.

 

Christine Bilbrey: Right, right.

 

Deborah Minnis: You should go above and beyond because you may not always have fewer than 15.

 

Christine Bilbrey: Right, but how do they stay up-to-date enough to make sure they’re doing the right thing, that they’re not causing a situation that could lead to liability? What source because you’re in a bigger firm, so here you are an expert in your firm but how could someone keep up with this?

 

Deborah Minnis: There are a number of associations, BB SHRM comes to mind, Big Bend Society for Human Resource Management, the National SHRM, Society of the Human Resource Management.

 

There are also a number of non-attorney folks who specialize in Compliance and Consulting. If they don’t want to have a retainer with, let’s say a lawyer like me; there are folks out there who offer those services.

 

Every now and then if I understand sometimes the payroll companies, ADP and some of those types of entities also offer those services, of course one of the things I always suggest is have an HR person whose job it is to manage these kinds of things and whose job it is to try to stay abreast of the changes and whose job it is to notify the powers-that-be when it’s time to train or a new and interesting things that are coming down the pipe. Because it’s hard to be for — say for example, a managing partner to also try to manage all of this as well because there are so many other issues on his or her plate so to speak.

 

Karla Eckardt: And I think it’s important for organizations, big and small, I mean you can Google and you’ll see any number of big law firms that have faced these issues in a very public manner, but for smaller firms I think it’s important to realize that just because they’re small, they’re not immune from this misconduct or from this type of misbehavior by a staff whether it’s attorneys or any other non-lawyer staff, and you mentioned earlier, have someone that’s dedicated to handling these issues and that goes a big way into showing the culture of the law firm. So, a lot of times people don’t want to report because there is no reporting culture and it’s sort of frowned upon, so I mean, it’s a step in the right direction to really have someone focus on these issues and try and improve even if it hasn’t happened yet, it doesn’t mean it can’t happen in the future. So it’s just really important to have someone that really cares about the issue and that can address them in a proper prudent and legal manner.

 

Deborah Minnis: And it’s important to have the culture that people feel comfortable reporting or know that there’s someone they can go to because as you said, if they don’t believe they can report by the time the managing partner learns about it, it’s probably going to be a bigger mess than it necessarily needed to be, and at that point, it’s going to end up being more public than it needed to be. And you’re absolutely right. Even if you are a small firm, it’s not that difficult to inadvertently get to 15 employees.

 

For example, that includes part-time, so you hire a few part-time interns here or there or a few partners, kids over the summer, and before you know it, there are 20 weeks in that year that you have 15 employees on your bus.

 

(00:44:54)

 

Karla Eckardt: Right or if you’re a small firm that suddenly merges or gets bought out by a big firm and suddenly you go from a place where these laws don’t apply to a place where they do apply. So it’s — again the recommendation is always that you go above and beyond and that you follow these rules because they are there for a reason, they set the sort of societal standard of what most of us think is right and wrong, so why not.

 

Deborah Minnis: Yes, why not exactly.

 

Christine Bilbrey: So, so much valuable information and like Karla said, we could keep you on forever, but we’ve reached the end of our program, but I want to thank you so much, Deborah Minnis, for joining us today.

 

Deborah Minnis: Oh, and thank you very much for the invitation. This is one of the more enjoyable things that I get to do.

 

Christine Bilbrey: If our listeners have questions or they’re looking for other resources can they find you on social media or —

 

Karla Eckardt: Your firm’s website?

 

Deborah Minnis: Yes, we have a Facebook page, Ausley McMullen. We also have a website that they can locate me on. So yes, and I’m on LinkedIn. I’m not very good at monitoring it, but I am there.

 

Christine Bilbrey: Excellent. So if you like what you heard today, please rate us in Apple Podcasts. Join us next time for another episode of The Florida Bar Podcast brought to you by LegalFuel, The Practice Resource Center of The Florida Bar on Legal Talk Network.

 

I am Christine Bilbrey.

 

Karla Eckardt: And I am Karla Eckardt. Until next time, thank you for listening.

 

[Music]

 

Outro: Thanks for listening to The Florida Bar Podcast, brought to you by The Florida Bar’s Practice Resource Center and produced by the broadcast professionals at Legal Talk Network.

 

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The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

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