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One Financial Plaza
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Minneapolis, Minnesota 55402-1805

Minnesota State Bar Association
Continuing Legal Education

December 4, 2007


I. Introduction[1]

Human resource professionals routinely attend employment law seminars, are well trained in employment law issues and obligations, and rarely make comments or take actions that lead to lawsuits or other claims against their employers.  Executives, managers and supervisors, on the other hand, rarely have the time to learn the detailed nuances of employment statutes, regulations and case law.  They rely on their human resource professionals to make sure the company’s employment law obligations are met.

However, executives, managers and supervisors often make comments or take actions without the benefit of a human resource professional’s input.  Their comments and actions frequently lead to employment law claims and lawsuits.

This presentation is intended to provide executives, managers and supervisors with common-sense, easy-to-remember guidelines which will help keep them on the right track with employees, and prevent or minimize employment-related claims and litigation.


In the employment law area, lawsuits and claims are often directed at both the company and the individual actors.  Either or both may have legal exposure.

1.                  Employers are generally liable for the actions/inactions of their executives/managers/supervisors. [2]

2.                  Employees may be individually liable for illegal treatment of other employees.[3]

3.                  Depending on the circumstances, companies do not always defend and indemnify those employees who may be individually liable.[4]


Even if an employer successfully defends a lawsuit, the financial cost, damage to morale, and lost productivity cannot be recovered.  Therefore, companies should have the following goals:

  • Keeps morale up; avoids loss of productivity.
    Minimizes/eliminates administrative time/expenses.
    Minimizes/eliminates legal fees/expenses.

    Avoid problems in the first place.

  • Control damages and maintain trust.

  • Limits claims, despite good faith and/or technical errors.

  • Enhances odds of quick, amicable resolutions.

  • Successfully defend claims if it becomes necessary.

  • Factual defenses.

  • Legal defenses.

  • Evidence of good faith.


Executives, managers and supervisors generally are not familiar with the details and nuances of employment-related laws.  Yet, on a daily basis, they must comply with the following statutes and avoid the following employment-related claims:

  • Title VII of the Civil Rights Act
  • Minnesota Human Rights Act
  • Other states’ human rights laws
  • Americans with Disabilities Act
  • Employee Retirement Income Security Act
  • Wage and hour statutes and regulations
  • Older Workers’ Benefit Protection Act
  • Age Discrimination in Employment Act
  • Family and Medical Leave Act
  • Minnesota leave laws
  • Minn. Stat. § 176.82 (non-retaliation for filing a workers’ compensation claim)
  • Federal and state wage and hour laws
  • Assault
  • “Whistleblower” claims
  • Battery
  • Defamation
  • Libel
  • Slander
  • Reprisal
  • Retaliation
  • Negligent or intentional infliction of emotional distress
  • Negligent hiring or retention
  • Breach of oral or written, express or implied, contract
  • Misrepresentation
  • Violation of company policies, personnel manuals or employee handbooks
  • Violation of public policy
  • Promissory estoppel
  • Fraud
  • Wrongful discharge
  • Tortious interference with contract
  • Breach of fiduciary duty
  • Breach of covenant of good faith and fair dealing
  • Invasion of privacy
  • Workers’ Compensation Act
  • Occupational Safety and Health Act
  • Minnesota OSHA


Executives, managers and supervisors cannot possibly be experts on all employment laws.  However, if they follow a few simple, common-sense guidelines, they can avoid, or at least minimize, the vast majority of employment-related claims, and help their company achieve the goals listed in Section III.



a. Before, during, or after employment.

(1) Recruiting.[6]
(2)               Written or oral job offers.[7]
(3)               Employment Agreements.[8]
(4)               Handbooks; policies; procedures.[9]
(5)               Discussions
(6)               Evaluations.
(7)               Separation.
(8)               Post-termination.

b.                  Regarding any terms or conditions of employment.

(1)               Length of employment.[10]
(2)               Compensation and benefits.[11]
(3)               Promotions; bonuses.
(4)               Post-termination severance or other packages. [12]


a.                   Don’t pry into their personal lives. [13]

(1)               During the recruiting/application process; or during employment/evaluation/ termination.[14]
(2)               Avoid questions about the “isms”. (The Federal and Minnesota “isms” include:  Race; color; age; religion; national origin; sex – including pregnancy; citizenship; military service obligations; union affiliation; and disability.  Additional Minnesota “isms” include:  marital status; sexual orientation; status with regard to public assistance; workers’ compensation complaints; membership in local commission; and non-work legal activities.)[15]

b.                  Don’t share too much about your personal life.[16]

c.                   Don’t ask/say something indirectly, which you can’t ask/say directly.[17]

d.                  Don’t gossip to others.[18]

e.                   Do keep your discussions work-related.


a.                   Avoid legal claims.

(1)               Discrimination.
(2)               Harassment.
(3)               Hostile environment.
(4)               Defamation.
(5)               Retaliation.
(6)               Pretext claims.

b.                  Avoid morale problems.

c.                   Preserve your reputation; career path.

d.                  Avoid bad, embarrassing publicity.


a.                   Make and communicate clear rules and expectations.[20]

(1)               Hiring documentation.
(2)               Policies and procedures.[21]
(3)               Performance expectations.
(4)               Evaluations (future goals and improvements).
(5)               Corrective actions.
(6)               Discipline.
(7)               Termination.

b.                  Listen.

c.                   Avoid misunderstandings.

d.                  . . . and document.

(1)               Supervisory notes.
(2)               Confirmations as needed.
(3)               Acknowledgement as appropriate.

5.                  BE FAIR.[22]

a.                   Be objective and consistent.

(1)               Hiring decisions (qualifications, requirements, expectations).
(2)               Rules, policies, compensation and benefits.
(3)               Performance evaluations.
(4)               Corrective actions.
(5)               Discipline.
(6)               Termination.

b.                  Even subjective decisions should be applied objectively.


a.                   Listen, without judgment.[24]

b.                  Initiate due diligence/investigations.[25]

c.                   Don’t interfere with investigations. [26]

(1)               Turn over to proper person.
(2)               Cooperate, but do not interfere, gossip, etc.

7.                  DON’T HURT PEOPLE.

a.                   Avoid physical injuries.[27]

b.                  Avoid financial or emotional injuries.[28]

c.                   Provide accommodations,[29] ergonomics to avoid aggravating existing conditions.

8.                  FOLLOW THE RULES.[30]

a.                   Lead by example; avoid hypocrisy.

b.                  Avoid “if he/she can do it, I can do it.”

c.                   Avoid breach of contract, constructive discharge, harassment, disparate treatment, retaliation, and other claims.

9.                  ACCEPT RESPONSIBILITY.[31]

a.                   Investigate problems.

b.                  Take appropriate remedial actions to address existing problems.

c.                   Learn from your mistakes.[32]

(1)               Don’t hide them.
(2)               Better to deal with your problems than let them get worse.
(3)               Address systemic/cultural causes.

10.              BE HONEST.[33]

a.                   Avoid suspicion, paranoia, skepticism.

b.                  A mediocre story told well is better than a great story told poorly.  Avoid:

(1)               Anger induced claims.
(2)               “Whitewash” accusations.
(3)               Fact disputes; pro-employee juries.
(4)               Looking like a liar.
(5)               Pretext claim liability.[34]

11.               “THE GOLDEN RULE.”

a.                   AKA the “ethic of reciprocity.”

b.                  Treat other people the way you want to be treated.

c.                   . . . IT WORKS . . . Virtually every religion and culture has its own version of the Golden Rule, which provides ample evidence that it has worked for thousands of years in many contexts.  For example:

  • Christian:  All things whatsoever ye would that men should do to you, do ye even so to them.
  • Jewish:  What is hateful to you, do not to your fellow men.  That is the entire law; all the rest is commentary.
  • Hindu:  This is the sum of duty; do naught unto others which if done to thee would cause thee pain.
  • Taoist:  Regard your neighbour’s gain as your own gain, and your neighbour’s loss as your own loss.
  • Buddhist:  Hurt not others in ways that you would find hurtful.
  • Confucian:  Do not unto others what you would not have them do unto you.
  • Jain:  In happiness and suffering, in joy and grief, we should regard all creatures as we regard our own self.
  • Zoroastrian:  Whatever is disagreeable to yourself do not do unto others.
  • Islamic:  No one of you is a believer until he desires for his brother that which he desires for himself.
  • Sikh:  As thou deemest thyself, so deem others.
  • Bahá’í:  Choose thou for thy neighbour that which thou choosest for thyself.
  • African Traditional Religions.  Yoruba Proverb (Nigeria):  One going to take a pointed stick to pinch a baby bird should first try it on himself to feel how it hurts.


Executives, managers and supervisors who follow the above guidelines will go a long way toward achieving the goals listed in this article.  However, if an executive, manager or supervisor has any doubt whether he/she should say or do something, he/she should consult with a human resource professional or legal advisor.  A human resource professional or legal advisor’s knowledge of employment laws, in combination with the executive/manager/supervisor’s commitment to follow the above rules, can almost always prevent – or at least minimize – costly legal claims and exposure.

[1] The footnotes in this article are not meant to be exhaustive, but rather to provide legal citations supporting the points being made and access to further research.

[2] Employers are generally held liable for their supervisors’ actions under a vicarious liability/respondeat superior theory.  See e.g. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (city vicariously liable for supervisor’s harassment under Title VII ); Odenthal v. Minnesota Conference of Seventh-Day Adventists, 657 N.W.2d 569, 576 (Minn. Ct. App. 2003) (“Under the ‘well-established principle’ of respondeat superior, ‘an employer is vicariously liable for the torts of an employee committed within the scope of employment’”); Waag v. Thomas Pontiac Buick, GMC, Inc., 930 F.Supp. 393, 405 (D. Minn. 1996) (employers are liable for the actions of their supervisors that amount to harassment resulting in tangible job detriment to the subordinate employee).

[3] See e.g. Jackson v. City of St. Louis, 220 F.3d 894, 898 (8th Cir. 2000) (in addition to defendant city’s liability, plaintiff’s supervisor was held individually liable under Title VII).  But see e.g. Waag v. Thomas Pontiac, Buick, GMC, Inc., 930 F.Supp. 393 (D. Minn. 1996) (individual supervisor cannot be held personally liable under Title VII or Minnesota Human Rights Act).

[4] See Minn. Stat. § 181.970 (“An employer shall defend and indemnify its employee for civil damages, penalties, or fines claimed or leveled against the employee, provided that the employee (1) was acting in the performance of the duties of the employee’s position; (2) was not guilty of intentional misconduct, willful neglect of the duties of the employee’s position, or bad faith; and (3) has not been indemnified by another person for the same damages, penalties, or fines.”); Minn. Stat. § 300.083, subd. 2 (“a corporation shall indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgment, penalties, fines,…if, with respect to the acts or omissions of the person complained of in the proceedings, the person: (1) has not been indemnified by another organization …for the same judgements, penalties, fines…(2) acted in good faith; (3) received no improper personal benefits; (4) in the case of a criminal proceeding, has no reasonable cause to believe the conduct was unlawful; and (5) in case of acts or omissions occurring in the official capacity…reasonably believed that the conduct was in the best interests of the corporation”).

[5] A supervisor may bind an employer when making promises to employees.  See e.g. Zitzer v. Hagen, No. C5-96-1479, 1997 WL 118241 (Minn. Ct. App. Mar. 18, 1997) (“Minnesota has long held that an agent, acting with authority, may bind the principal to a contract:”); Martens v. Minnesota Mining & Manufacturing, 616 N.W.2d 732 (Minn. 2000) (setting forth the elements of a promissory estoppel claim in the employment context; the elements include a promise by the employer upon which the employer intends the employee to rely, the employee did rely to his/her detriment, and the enforcement of the promise is necessary to prevent injustice); Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir. 2001) (finding a “contract” to support a § 1981 claim despite not finding grounds for a contract claim based on the employee handbook).  But see e.g. Schoff v. Combined Insurance Co., 604 N.W.2d 43 (Iowa 1999) (manager’s statement that prior felony charges would not be a problem was not clear and definite enough for promissory estoppel claim).

[6] Promises made during recruiting may be problematic if construed as violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17 (“Title VII”), the Minnesota Human Rights Act, Minn. Stat. 363 (“MHRA”), the Americans with Disabilities Act, 42 USC 12101 (“ADA”), the Equal Pay Act, 29 USC 206(d) (“EPA”), the Age Discrimination in Employment Act, 29 U.S.C. 621-634 (“ADEA”) or other such statutory employment protections.  Problems may emerge when promises relate to employment terms and conditions that treat protected classes differently or have a disparate impact on protected class members.  Pre-employment oral promises can also give rise to claims of breach of implied contract or for fraud.  See e.g. Interstate Freeway Services, Inc. v. Houser, 835 S.W.2d 872, 875 (Ark. 1992) (a new restaurant hired a manager with the promise that he’d be able to run the restaurant without any outside influence, but fired him after the manager finished with the difficult, initial start-up work; the manager successfully sued for common law fraud).

[7] Written job offers not carefully drafted may create an employment contract. See e.g. Friedman v. BRW, Inc., 40 F.3d 293 (8th Cir. 1994) (employee claimed offer of “permanent employment” changed at-will contract to one of discharge for-cause only).  Moreover, oral offers may create binding contractual obligations.  See e.g. Severson v. Kevin Roche Financial Services, No. C2-00-1834, 2001 WL 741396 (Minn. Ct. App. Jul. 3, 2001) (awarding $250,000 to plaintiff based on her claim that her oral job offer created a partnership, which was subsequently breached).

[8] See e.g. Ross v. Garner Printing Co., 285 F.3d 1106, 1113 (8th Cir. 2002) (employer failed to meet its burden of proof that the termination had been “for cause,” as required by the employment agreement).

[9] Employee Handbooks and other policies, if not carefully drafted, may create an employment contract between employers and employees.  Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983) (determining that under certain circumstances an employee handbook may create an employment contract); Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701 (Minn. 1992) (finding a breach of contract action where an employer failed to follow its own policies).  Moreover, Summary Plan Descriptions (“SPDs”)  describing employee benefits may be used to bind employers to the terms of the SPD even where the SPD is contrary to the terms of the benefit plan.  See e.g. Dodson v. Woodmen of the World Life Ins. Soc., 109 F.3d 436, 439 (8th Cir. 1997) (holding facts showed plaintiff was prejudiced by SPD’s omission of time limit for filing benefits claim, in that plaintiff read the SPD and would have had the opportunity to timely file or otherwise preserve his benefits); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566, 1570 (11th Cir. 1985) (holding when a plan and its summary description conflict, and the employee or beneficiary demonstrates the requisite reliance, the terms of that description determine eligibility for benefits).

[10] Promises or statements made by supervisors or managers relating to length of employment or continued employment may lead to claims that an otherwise at-will employment relationship is altered by an employment contract.  E.g. Ritchie v. Michigan Consol. Gas Co., 413 N.W.2d 796 (Mich. Ct. App. 1977) (general manager’s and supervisor’s representation that an employee would be employed for her 20-year mortgage’s duration and as long as the employer was in business is sufficient to raise question whether employment was actually at-will); Terrio v. Millinocket Community Hosp., 379 A.2d 135 (Me. 1977) (supervisor’s assurance that the employee was secure in her job “for the rest of her life” provided evidentiary support for her contract claim”). But see e.g. Redgate v. Fairfield University, 862 F.Supp. 724, 730 (D. Conn. 1994) (promises of employment for ten or twenty years and “for as long as you want” not sufficient promise of continued employment); Humphreys v. Bellaire Corp., 764 F.Supp. 489, 493 (S.D. Ohio 1991) (alleged promise of job security alone did not give rise to promise of employment for a specified term).

[11] In addition to creating contract claims for promised compensation or benefits, promises relating to wages and compensation may conflict with laws regarding employment pay either under federal law such as the Fair Labor Standards Act, 29 USC § 201-219, (“FLSA”) as well as under Minnesota law such as Minnesota Statute § 181.101 and § 181.13 (requiring the timely payment of wages due and assessing penalties for failing to pay on time).

[12] See e.g. Feinberg v. Pfeiffer Co., 322 S.W.2d 163 (Mo. Ct. App. 1959) (granting an older female employee pension benefits based solely on an earlier personal promise from the deceased owner; although the promise did not constitute a contract, the woman relied on the promised pension).

[13] The Minnesota Supreme Court has recognized a cause of action for invasion of privacy.  Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998) (recognizing cause of action for (1) intrusion upon seclusion, (2) appropriation, and (3) publication of private facts but declining to recognize an action for false light publicity).  See also C.L.D. v. Wal-Mart Stores, Inc.,79 F.Supp.2d 1080, 1082 (D. Minn. 1999) (relating to disclosure of private health information to three other managers); Bodah v. Lakeville Motor Express, Inc., 649 N.W.2d 859 (Minn. Ct. App. 2002) (relating to dissemination of social security numbers to 16 managers of affiliate).

[14] Requesting more information than is necessary for filling a position may violate Title VII, ADA, ADEA, MHRA, Immigration Reform and Control Act, 8 USCA 1324a-1324d (“IRCA”), and other similar statutes that protect certain classes of people. For example, the ADA and the MHRA specifically prohibit medical exams or medical inquiries before an employment offer is extended, and limit what can be done or asked after the offer. 42 U.S.C. 12112(d); Minn. Stat. § 363.03 Subd. 1a.  In addition, Minnesota law prohibits employer action based on genetic testing.  See Minn. Stat. § 181.974, subd 2(a)(1).  IRCA prohibits requests for more information than is necessary to prove the legal right to work in the United States.  The Fair Credit Reporting Act, 15 USC § 1681 et seq., requires employers to follow certain notice requirements if using outside resources to obtain information on employees.

[15] E.g. EEOC regulation 29 C.F.R. § 1604.7 (“Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification”); King v. Trans World Airlines, 738 F.2d 255, 258 (8th Cir. 1984) (questions about pregnancy and childbearing are unlawful per se; dictum).

[16] See e.g. Jaros v. LodgeNet Entertainment Corp., 294 F.2d 960 (8thCir. 2002) (supervisor’s boasting about his sexual abilities part of facts leading to violation of Title VII).

[17] See e.g.. Barbano v. Madison County, 47 FEP 1872, 1877-78 (N.D.N.Y 1988) (interview questions of female applicants for the position of Director of Veterans Service Agency were probative of discriminatory intent; an applicant was asked about her plans for a family and whether her husband would object to her transporting male veterans; the court did not decide whether the questions were unlawful per se, but suggested in dictum that they were).

[18] Gossip may lead to claims, regardless whether the information is true or false.  If the information is false, an employee may succeed in a defamation claim.   See e.g. Kuechle v. Life’s Companion P.C.A., Inc. 653 N.W.2d 214 (Minn. Ct. App. 2002) (employment case discussing the elements of defamation). Defamation claims are based on the publication (which simply means telling a third party) of a false and disparaging statement about the plaintiff.  They commonly occur in the employment context when comments go too far and include allegations and gossip.  If the topics of gossip are true, this may lead to an invasion of privacy cause of action.  Lake v. Wal-Mart, 582 NW2d 231 (Minn. 1998) (recognizing a right to privacy cause of action in Minnesota).  Gossip may also lead to claims of harassment where employees feel such gossip contributes to a hostile work environment or retaliation. See e.g. Knox v. State of Indiana, 93 F.3d 1327, 1334-35 (7th cir. 1996) (employer’s knowledge of vicious co-worker gossip and its failure to do anything about it may constitute employer acquiescence to such retaliation after plaintiff complained of sexual harassment).

[19] Teasing and other disrespectful treatment can lead to claims of harassment under Title VII and the MHRA.  See e.g. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (evidence that supervisor told plaintiff he was so “old he must have come over in the Mayflower” showed age-based animus in ADEA claim).  See also, Yates v. Rexton, Inc., 267 F.3d. 793 (8th Cir. 2001) (finding that stray comments can be used as evidence of discrimination); Fletcher v. Tom Thumb, Inc., No. Civ. 99-1680 DWF/SRN, 2001 WL 893913 (D. Minn. Aug. 7, 2001) (noting that the use of racial epithets constitutes direct evidence of racial animus); Coulson v. Goodyear Tire & Rubber Co., 2002 WL 408872, at *6 (6th Cir. 2002) (alleging references to plaintiff who suffered from depression as “looney toon”, “wacko” and “crazy” created a hostile environment); but see McClain v. Southwest Steel Co., 940 F.Supp. 295 (N.D. Okla. 1996) (calling a depressed plaintiff  “crazy” and “lunatic” not sufficient to establish hostile work environment); Regan v. National Resources Group, Inc., 345 F.Supp.2d 1000 (D. Minn. 2004) (stray remark by director that company was top heavy, along with request to identify ages of decision-makers, was not sufficient to deny summary judgment of age claim).

[20] Employers who follow their rules and polices and clearly communicate their expectations to employees can prevent or minimize liability.  See e.g. Stiefel v. Allied Domeco Spirits & Wine USA, Inc., 184 F.Supp.2d 886 (W.D. Ark. 2002) (employer not liable under the Family and Medical Leave Act for terminating employee after miscarriage because decision to terminate employee for absenteeism was supported by employee handbook); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999) (employee failed to establish Americans with Disabilities Act claim although terminated one month after she told her supervisor of her tendinitis because employee was warned that a single misstep would result in her termination and she was terminated when she came to work tardy).

[21] Handbooks and policies provide employees notice of an employer’s expectations. See e.g. Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (setting forth an affirmative defense for those employers with an adequate sexual harassment policy where no tangible adverse job action has occurred).  Conversely, where an employer fails to implement a required policy, employers are held liable.  See e.g. Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000) (refusing to consider the Faragher/Ellerth affirmative defense because the employer’s sexual harassment policy was deficient); Giuliani v. Stuart Corp., 512 N.W.2d 589 (Minn. Ct. App. 1994) (holding the employer liable for sexual harassment where it failed to respond for two years and where it had no sexual harassment policy to prevent such problems).

[22] Treating employees unfairly may lead to claims of discrimination under Title VII, ADA, ADEA, EPA, MHRA or other statutes that protect certain groups of people from unfair treatment in the workplace based on their protected class status.  See e.g. Simmon v. New Public School District No. Eight, 251 F.3d 1210 (8th Cir. 2001) (holding, in part, that the salaries of male employees are relevant to a female employee’s claim of unequal pay); Graham v. Long Island R.R., 230 F.3d 34 (2nd Cir. 2000) (violation of Title VII when employer terminated African-American employee for alcohol violation after receiving one waiver, but granting Caucasian employee two additional waivers); Blount v. Alabama Co-op. Extension Service, 869 F.Supp. 1543 (M.D. Ala. 1994) (employee could state prima facie case of wage discrimination under Title VII based on her race or sex because three Caucasian males and one Caucasian female who held same position but were paid more).

[23] Title VII, 42 U.S.C § 2000e-3; Minnesota Human Rights Act, Minn. Stat. § 363.03, Subd. 7; OSHA, 29 U.S.C § 660(c); Minnesota Workers’ Compensation Act, Minn. Stat. § 176.82; Minnesota OSHA, Minn. Stat. § 182.654, Subd. 9; ERISA, 29 U.S.C. § 1140; the FMLA, 29 U.S.C. 2615(a); and other statutes all prohibit retaliation against anyone exercising their right to file a claim.  See e.g. Cox v. Crown Coco Inc., 544 N.W.2d 490 (Minn. Ct. App. 1996) (noting that employee established causal connection between her discharge and her earlier reports to authorities about safety violations at workplace for purposes of establishing prima facie case of retaliatory discharge in violation of whistleblower statute and the Minnesota Occupational Safety and Health Act, though employer presented evidence that it had intended to terminate employee prior to her making the reports.  Of interest to the court in making this determination was evidence that the employer complained to others about the employee’s complaint.)

[24] Managers who react to an employee’s claim of harassment or discrimination with such statements as “I can’t believe it” or “he wouldn’t do something like that” show nonchalance and indifference that may aggravate the situation.  See e.g. Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000) (finding that an employer’s written sexual harassment policy did not constitute a good faith effort at compliance when the employer minimized the plaintiff’s complaints of harassment).

[25] See e.g. Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990) (allowing employee’s defamation claim to proceed where the employer failed to conduct any private investigation of accusations of theft before accusing, even indirectly, employee of theft); Minn. Stat. § 181.953(10)(a) (drug and alcohol testing statute prohibits firing employees upon the first positive result). If the lack of due diligence is bad enough, it may result in other tort claims against an employer.  For example, in Bodewig v. K-Mart Inc., 635 P.2d 657 (Or. App. 1981), in an effort to appease an angry customer who believed the cashier stole her $20 bill that was placed on the counter to pay for a purchase, the store manager took the employee and the customer to the back of the store and required the employee to undergo a strip search in front of the customer.  The $20 bill was never found; the customer found it later that evening at her own home.  The store was liable to the employee for the manager’s actions in a tort claim brought by the employee.  The court found the strip search to be an “outrageous act” for purposes of the tort claim.

[26] Interference with an investigation may create the impression, or lead to claims of, harassment, discrimination or retaliation. Even interference with investigations by the complaining party may be deemed proper grounds for termination of employment.  See Bick v. Harrah’s Operating Co. Inc., No. 98 C 7849, 2000 WL 204222 (N.D. Ill. Feb 17, 2000) (employee’s termination not deemed retaliation where employee disclosed to others confidential information that harasser was under investigation).

[27] Statutes intended to address workplace injuries include OSHA, 29 USC § 651-678, Minnesota OSHA, Minn. Stat. § 182 and Workers’ Compensation Act, Minn. Stat. § 176.

[28] Title VII, 42 USC 2000e-5(g), ADA, 42 USC § 12117,  ADEA, 29 USC § 626(c), MHRA, Minn. Stat. § 363.06 and virtually all of the other statutes and common law claims listed in Section IV of this article provide recovery for damages.

[29] The ADA, 42 USC 12112(b)(5) and MHRA, Minn. Stat. 363.03 Subd. 1(6) require employers to provide reasonable accommodations to disabled workers.  Various federal and state statutes may require leaves of absence to be granted, e.g., FMLA.  Regardless, Employers should provide a work environment in compliance with OSHA and Minnesota OSHA, to avoid accidents, injuries and claims, not to mention workers’ compensation liability.

[30] See e.g. Feges v. Perkins Restaurant Inc, 483 N.W.2d 701 (Minn. 1992) (finding that an employer’s failure to follow its policies may result in a breach of contract action);  Neubert v. St. Mary’s Hosp. & Nursing Center, 365 N.W.2d 780, 783 (Minn. Ct. App. 1985) (an employer’s failure to follow its own disciplinary policies and procedures may provide an employee with good cause to quit); Floyd v. Mo. Dep’t of Soc. Servs., 188 F.3d 932, 937 (8th Cir. 1999) (employer’s failure to follow its policies may support inference of pretext); Lowery v. Circuit City Stores, 206 F.3d 431, 446 (4th Cir. 2000) (stating that an employer’s commitment to its written antidiscrimination policy was called into doubt by racially discriminatory attitudes of top executives and the implementation of a promotional system designed to hide race discrimination in promotions); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999) (holding that Wal-Mart’s policy of encouraging employees to contact management about perceived discrimination did not prevent an award of punitive damages when Wal-Mart failed to respond effectively to the plaintiff’s complaints by promising her that it would look into her concerns but instead fired her on pretextual grounds); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000) (“[A]n employer must show not only that it has adopted an antidiscrimination policy, but that it has implemented that policy in good faith”).  An employer’s failure to comply with its own policies may open employers to liability.  See e.g. Romano v. U-Haul Intern., 233 F.3d 655, 670 (1st Cir. 2000) (a written nondiscrimination policy was insufficient to insulate an employer from punitive damages when the employer failed to demonstrate that it had attempted to implement the policy by educating its employees or actively enforcing its mandate).

[31] An employer may offer an affirmative defense in harassment cases, in which the plaintiff did not suffer a tangible employment action, if the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.  See e.g. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Tutuman v. WBBM-TV/CBS Inc., 54 F.Supp.2d 817 (N.D. Ill. 1999) (despite egregious acts by co-employees, employer avoided liability because it acted promptly and appropriately in response to harassment claim); Delashmutt v. Wis-Pak Plastics, Inc., 990 F.Supp. 689 (N.D. Iowa 1998) (employer’s response to claim of sexual harassment by co-employee was sufficiently prompt and reasonable, and thus, employer was not liable under Title VII).  Conversely, failure to promptly act in response to claims of harassment and pursuant to company policies may contribute to employer liability.  See e.g. Sims v. Health Midwest Physician Serv., 196 F.3d 915, 919 (8th Cir. 1999) (“An employer may be responsible for the consequences of sexual harassment if information about the harassment came ‘to the attention of someone who… is reasonably believed to have.. a duty to pass on the information to someone within the company who has the power to do something about it…’”); Angier v. Henderson, No. Civ. 00215, 2001 WL 1629518 (D. Minn. Aug. 3, 2001) (denying an employer’s motion for summary judgment where employee had complained of sexual harassment to three different supervisors over a three year period, but none took effective action to eliminate the harassment); Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) (“[E]ven if an employer-defendant adduces evidence showing it maintains on paper a strong non-discrimination policy and makes good faith efforts to educate its employees about that policy and Title VII, a plaintiff may still recover punitive damages if she demonstrates the employer failed to adequately address Title VII violations of which it was aware”).

[32] See e.g. Yunker v. Honeywell, Inc., 496 N.W. 2d 419 (Minn. Ct. App. 1993) (remanding for jury consideration the negligent retention claim where employer kept an employee employed despite evidence of violent behavior and threats toward another co-worker, whom employee later shot and killed); Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) (noting that employer was properly held liable for sexual harassment, especially where employer had notice of supervisor’s inappropriate behavior with other employees); Ciszewski v. Engineered Polymers Corp., 179 F. Supp 2d 1072 (D. Minn. 2001) (denying summary judgment where a pattern of sexually inappropriate conduct by male factory workers was sufficiently widespread so that the employer was on constructive notice of the harassment).

[33] See e.g. Potter v. Ernst & Young, 622 N.W.2d 141 (Minn. Ct. App. 2001) (allowing an employee’s claim to proceed because he was terminated in spite of good reviews); Johnson v. Verisign Inc., 89 FEP Cases 769 (2002) (granting a new trial for an employee who claims he was fired in retaliation for his discrimination complaint once the court learned that the employer lied about the reason it fired the employee).

[34] Even if an employer can offer a legitimate non-discriminatory reason for an employment action, employees can prove that the alleged reason was just pretextual by pointing to other employer actions that show discrimination or inconsistency.  See e.g. White v. McDonnell Douglas Corp., 985 F. 2d 434 (8th Cir. 1993) (if employer articulates reasons sufficient to rebut prima facie case of race or sex discrimination, inquiry proceeds to new level of specificity; employee is entitled the opportunity to show that stated reason for employer’s action was in fact pretext); Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 146 (Minn. Ct. App. 2001) (holding employment discrimination plaintiff can prove pretext either by presenting direct evidence that discriminatory reason motivated employer’s decision or by presenting evidence that employer’s proffered reason is unworthy of credence, thus raising inference that real reason is discriminatory).