The U.S. Supreme Court issued two recent opinions that negatively affect the rights of every employee in Minnesota and across the country.
In University of Texas Southwestern Medical Center v. Nassar, the issue before the court was the standard a plaintiff needs to meet in order to prove a retaliation claim under Title VII. As you may recall, Title VII is the federal law that, among other things, prohibits discrimination and retaliation in employment based on a person's race, color, religion, sex, or national origin. The court was presented with the question of what standard a plaintiff had to prove in order to succeed on a claim of retaliation. A claim of retaliation typically exists when an employee complains of discrimination in the workplace and then suffers some type of adverse employment action (termination, demotion, cut in pay, etc.) as a result.
As recognized in the SCOTUS Blog, Congress and the court have had a unique "back-and-forth" about what a plaintiff has to prove to succeed on a claim brought under Title VII. Like many employment law statutes, Congress approved Title VII and the Supreme Court then began narrowly interpreting it in a series of decisions. Specifically, the court had previously held that a plaintiff need to prove that "but for" their race, color, religion, etc., they would not have suffered the adverse employment action at issue. This meant that even if a plaintiff could prove an employer's decision was based in part on an improper motive such as sex, they could still lose if the jury believed the employer would have fired them anyway.
In 1991, Congress acted and overturned those decisions. Specifically, the court adopted a "motivating factor" test that, in essence, allowed the plaintiff to prevail if she could show an improper motive was one of many "motivating factors" in the adverse employment decision.
The issue before the court in Nasser was whether the motivating factor test applied to retaliation claims. The court held that it does not. Justice Alito, writing for the 5-4 majority, stated that retaliation claims are to be decided using the "but for" analysis. Justice Ginsberg, who read her dissent in court, specifically called on Congress to overturn this decision because the court has, on numerous occasions, held that retaliation is simply another form of discrimination.
In sum, this decision makes it more difficult for plaintiffs to prove a claim of retaliation under federal law. Employees in Minnesota still may bring a retaliation claim under the Minnesota Human Rights Act, which applies the motivating factor test.
The second case is Vance v. Ball State University. In that case, the court further defined who constitutes a "supervisor" in claims for workplace harassment. Specifically, the court held that a supervisor is limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The court went on to hold that “the ability to direct another employee’s tasks is simply not sufficient” to call someone a supervisor. Limiting who constitutes a supervisor is significant because the burden to prove harassment against a supervisor is less burdensome than against a co-worker.
In the big picture, these cases materially limit employees' rights in the workplace.
Showing posts with label Minnesota Human Rights Act. Show all posts
Showing posts with label Minnesota Human Rights Act. Show all posts
Friday, July 12, 2013
Tuesday, June 12, 2012
What Constitutes A "Hostile Work Environment?"
When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment." We often hear the term used to describe situations where someone is being subjected to sexual harassment. Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment. However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.
Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others. Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.
The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728. Carol LaMont was a custodian at the Elk River, MN high school. She reported to supervisor Doug Miner. According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace. These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place." Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place." Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.
The court in this case had to grapple with two issues. First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment. Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?
The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons. Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.
But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment. Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.
The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment. The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances." In sum, the court found the conduct non-actionable because it was infrequent and not severe.
Notably, two of the seven justices dissented from the opinion. They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.
In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex. At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment. But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.
Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others. Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.
The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728. Carol LaMont was a custodian at the Elk River, MN high school. She reported to supervisor Doug Miner. According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace. These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place." Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place." Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.
The court in this case had to grapple with two issues. First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment. Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?
The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons. Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.
But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment. Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.
The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment. The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances." In sum, the court found the conduct non-actionable because it was infrequent and not severe.
Notably, two of the seven justices dissented from the opinion. They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.
In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex. At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment. But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.
Wednesday, April 11, 2012
Social Media In The Workplace
I have previously posted about the intersection of social media and the workplace. Prior posts are here and here. Recently, however, there has been a lot of buzz around how employers are attempting to obtain from employees or prospective employees the username and password ("login") information relating to their social media accounts so they can snoop around and see what they are doing in their spare time. Employers are then purportedly using this information when making hiring and other employment decisions. Here is a good interview of a law professor that discusses many of these issues.
Whether employers can request this information and access your private accounts is unclear. The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed. This often proves very challenging for courts and lawyers.
I have a visceral reaction to the idea of providing login information to an employer. But why is that? And if asked, are you required to provide your employer access to your social medial profiles? What are the consequences if you refuse the request?
The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship. While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private. We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment. Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers.
When posting to Facebook, we often don't think about that disclosure line. We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer. So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer. The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.
Do you have to provide the information requested? There are arguments that existing law may prohibit an employer from accessing your private social media accounts. The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data. The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized? One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA. Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.
Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access? Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account. So if you authorize your employer to access your account but Facebook has not, is the access authorized or not? This issue is unresolved.
And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute. The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.
And what if you are an applicant for employment who is asked to provide your login information? We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc. Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision. But by asking for your login information, are they in essence asking for this information and violating the law? This is unresolved as well. Some in congress are taking action to investigate this practice and put a stop to it.
There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason. If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations? Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information. I tend to agree.
But what should you do today if your employer asks for this information? First, ask your employer why it needs the information. There may be a less intrusive way to get the employer what they want.
Second, ask what will happen if you choose not to provide the login information. Will you be fired? Is there some other negative consequence that will occur?
Third, ask if you can consult with an attorney before making a decision. If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed. If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence. You may also want to consider telling them that you believe what they are doing may violate the law.
All of these decisions have consequences that cannot be predicted. The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.
Whether employers can request this information and access your private accounts is unclear. The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed. This often proves very challenging for courts and lawyers.
I have a visceral reaction to the idea of providing login information to an employer. But why is that? And if asked, are you required to provide your employer access to your social medial profiles? What are the consequences if you refuse the request?
The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship. While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private. We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment. Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers.
When posting to Facebook, we often don't think about that disclosure line. We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer. So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer. The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.
Do you have to provide the information requested? There are arguments that existing law may prohibit an employer from accessing your private social media accounts. The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data. The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized? One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA. Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.
Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access? Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account. So if you authorize your employer to access your account but Facebook has not, is the access authorized or not? This issue is unresolved.
And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute. The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.
And what if you are an applicant for employment who is asked to provide your login information? We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc. Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision. But by asking for your login information, are they in essence asking for this information and violating the law? This is unresolved as well. Some in congress are taking action to investigate this practice and put a stop to it.
There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason. If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations? Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information. I tend to agree.
But what should you do today if your employer asks for this information? First, ask your employer why it needs the information. There may be a less intrusive way to get the employer what they want.
Second, ask what will happen if you choose not to provide the login information. Will you be fired? Is there some other negative consequence that will occur?
Third, ask if you can consult with an attorney before making a decision. If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed. If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence. You may also want to consider telling them that you believe what they are doing may violate the law.
All of these decisions have consequences that cannot be predicted. The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.
Saturday, March 3, 2012
What Do A YouTube Video, Kickboxing, The Burnsville School District And A $255,000 Settlement Have In Common?
The folks in the Burnsville-Eagan-Savage School District are up in arms over a settlement payment made to the District's departing human resources director Tania Z. Chance. As first reported, Chance was paid approximately $254,000 to leave her job, which is supposedly the balance on her two-year employment contract that the school board just approved in July 2011. Dozens of angry parents, teachers and community members confronted the school board on Thursday about such a large payout and wanted details of why such a payment was made. Many opined that because the District is looking at significant budget cuts it should have put that money into the classrooms instead. One speaker compared the affair to Watergate and urged the school board to not "cover up" what actually happened.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
(Tania Z. Chance)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
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