Employment Practices Solutions News and Snippets

Georgia Power Agrees to Pay $1.5 Million For Disability Discrimination

2016-12-01T01:00:00.000-05:00

The U.S. Equal Employment Opportunity Commission (“EEOC”) brought suit on behalf of 24 employees claiming disability discrimination by Georgia Power Company. These employees asserted that Georgia Power refused to hire applicants and fired employees based on their disabilities because they believed these employees could not safely perform their jobs. Georgia Power purportedly refused to hire or allow these employees back even with notes from physicians indicating that they could perform the essential functions of their positions and without Georgia Power performing any individualized assessment.

The Americans with Disabilities Act (“ADA”) protects individuals who can perform the essentials functions of their positions with or without accommodation. Exceptions may be made if workers pose a “direct threat” which must be a “significant risk” to the health or safety of others. Employers bear the burden of proving such a threat. In bringing the suit, the EEOC contended that Georgia Power failed to assess whether each individual posed a “direct threat” to the safety of others.

Georgia Power and the EEOC have entered into a consent decree. The company has agreed to pay $1.586,500 in monetary relief. In addition, the company must alter its seizure policy and its drug and alcohol policy to make sure that they comply with the ADA. All employees will now receive anti-discrimination training. Georgia Power will be subject to monitoring for three years including letting the EEOC know when it does not hire someone because of his or her disability or does not allow a worker to return because of disability. Georgia Power has not admitted liability and has entered into the decree to avoid litigation costs.

Being Nicer is Not a Reasonable Accommodation

2016-11-30T01:00:00.000-05:00

Holly Hargett has suffered from epileptic seizures since childhood. Even with medication, she has remained at risk for suffering seizures. About eight years into her employment with Florida Atlantic University (“FAU”), Ms. Hargett alerted them to the fact that she was epileptic, that her seizures were often brought on by high “tension and stress,” and that she considered her work environment stressful.

Several years later, Ms. Hargett had a new supervisor. Ms. Hargett perceived her new supervisor as “rough” and “harsh.” He spoke angrily to her; he was unfriendly to her; he questioned her work; he refused to provide her training; and he micromanaged her work. This scrutiny was confirmed by witness testimony. Ms. Hargett’s physician advised FAU that it was “medically necessary” for her to step away from the stressful environment. She requested that the supervisor stop his “hostile confrontations” with her and that she be provided with “calm, fair, non-confrontational treatment."

A federal district in Florida reviewed that request. It concluded that Ms. Hargett’s demand that her supervisor adopt a “less overbearing management style” was generally held to be “unreasonable.” An employee may be able to request that specific stressors be addressed, however, “an employee cannot immunize herself from stress and criticism in general.” Ms. Hargett did not provide specific stressors that were created by her supervisor. Thus, her accommodation requests were not reasonable and FAU was not required to act upon them.

Saved By The Bell: Overtime Rule Halted

2016-11-29T01:00:00.000-05:00

The U.S. Department of Labor’s new overtime regulations, expected to go into effect on Dec. 1, 2016, are now on indefinite hold.

The proposed overtime rules under the Fair Labor Standards Act would have increased the standard salary level of exempted white-collar employees from $23,660 to $47,476. Exemption for highly compensated employees would have gone up from $100,000 to $134,000. It required automatic salary increases every three years based on average salary levels determined by the Bureau of Labor Statistics. It also allowed employees to use commission and other non-discretionary incentive pay to satisfy up to 10% of standard white-collar exemptions.

A U.S. District Court in Texas granted a nationwide preliminary injunction challenging the new rules. This injunction will prevent the DOL from implementing the rule. A large group of businesses sought the injunction on the grounds that the DOL had exceeded its authority in creating the new regulations. It was the contention of these businesses that Congress did not intend salary level to categorically exclude white-collar workers from the exemption i.e. it should not be a “de facto salary-only test.” With a new president taking office shortly, the future of the new overtime rules is unclear.

Poor Customer Satisfaction Justified Termination Of ADA Protected Employee

2016-11-23T14:20:00.000-05:00

Jodie Kelley worked for Amazon as a customer service representative. She handled questions from customers and tried to resolve their complaints. She had endometriosis and suffered from migraine headaches, which required her to take intermittent leave. By 2010, her customer “Expressed Dissatisfaction Rate (“EDR”) showed that her performance with customers had declined. She was unable to successfully cure her issues and Amazon fired her. She sued for violation of the Americans with Disabilities Act (“ADA”).

In determining whether Ms. Kelley had been discriminated against based on her disability, the Ninth Circuit Court of Appeals looked at whether she was able to perform the essential functions of her position without or without accommodation. The circuit court concluded that “customer service is the reason for the existence” of Ms. Kelley’s position. Over an eight-month period, she failed to meet customer service standards and Amazon personnel had attempted to work with her to improve her performance. Thus, Ms. Kelley could not establish that she could perform the essential function of her position with or without accommodation. Ms. Kelley had argued that she should have been transferred to another customer service position but the court rejected that as an option. No evidence had been shown that there was another position for which she was qualified.

The court also rejected the argument that Amazon was required to consult with Ms. Kelley’s doctor as a means of accommodation. Physician consultation “is a potential method of discovering a reasonable accommodation, it is not a reasonable accommodation in and of itself.” The case was dismissed.

Employer’s Honest Belief Once Again Overcomes ADA Claim

2016-11-22T14:13:00.000-05:00

Excel Mining, LLC had a strict no-tolerance policy for drug use with one just exception. If the employee informed Excel about a prescription drug use and Excel’s doctor advised that it was safe to use the drug, then the employee would keep his or her position.

Timothy Adkins failed his random drug test, having tested positive for alcohol and prescription drugs. With Excel’s permission, Mr. Adkins went to an in-patient treatment center for alcohol dependency. He was treated with oxazepam, which is a prescription drug for alcohol withdrawal symptoms. Upon his return to work, Mr. Adkins disclosed the prescriptions received during his treatment except for oxazepam. His drug test when he returned to work showed oxazepam in his system. The company called the drug testing lab to find out more. Excel learned that the medication clears a person’s system within three days. Left to conclude Mr. Adkins was taking undisclosed drugs, he was terminated for failing the drug test.

Claiming that he was fired for being an alcoholic, Mr. Adkins sued Excel for violation of the Americans with Disabilities Act. First, the federal district court rejected Mr. Adkin’s argument that the timing of his treatment and his termination established discrimination. Next, the Court looked to whether Excel had an “honest belief” that Mr. Adkins had violated its drug policy. The standard for “honest belief” required Excel to “make an informed and considered decision based on the facts before it” even if that belief turns out to be “mistaken, foolish, trivial, or baseless.” Excel’s information from the drug testing lab, as well as Mr. Adkin’s failure to list oxazepam as one of his medications, were sufficient to establish that Excel had an “honest belief” that he was violating the drug policy. The case was dismissed.

“Drama” Creating Mental Disability Must Be Accommodated

2016-11-21T14:18:00.000-05:00

Eymarde Lawler taught students with learning disabilities in Peoria School District No. 150 (“Peoria”). Her employment with Peoria was always satisfactory until she suffered a relapse of her Post Traumatic Stress Disorder (“PTSD”). The PTSD was brought on by a problematic relationship with the principal of her school. She asked for a leave of absence. It was at this point that Peoria first learned of her PTSD. Ms. Lawler’s psychiatrist recommended that she be transferred to another school for her mental health.

Ms. Lawler was transferred to a Day treatment program. This program was to “teach children with not only learning disabilities by also severe emotional and behavioral disorders.” Both she and her new principal agreed that it was not a suitable position for her. At the beginning of her second year in that position, she was unintentionally thrown against the wall by a disruptive student, which caused a concussion. This incident further triggered her PTSD. After consulting with her psychiatrist, she requested a leave and another transfer. This time Peoria did not accommodate her request. Instead, it accelerated her performance review. She was reviewed as unsatisfactory and she was fired. The review criticized her for being abrasive and behaving inappropriately with co-workers and students.

The Seventh Circuit Court of Appeals ruled against the school district, finding that Peoria should have engaged in an interactive process with Ms. Lawler. In that process, Peoria would have learned that many of the issues relied upon in her performance review were caused by her PTSD. The psychiatrist noted that her “PTSD was being aggravated by working with students who had severe behavioral and emotional disorders.” The record also showed that that Peoria had approximately seven other openings in the district for special education teachers.

One Federal Court Supports EEOC Position on Sexual Orientation Discrimination

2016-11-17T01:00:00.000-05:00

Approximately one year ago, the Equal Employment Opportunity Commission (“EEOC”) brought several suits alleging sexual orientation discrimination. It is the EEOC’s position that Title VII prohibits such discrimination.

In EEOC v. Scott Medical Health Center, a homosexual employee alleged that his manager subjected him to egregious harassment based on his sexual orientation. The employee was called a number of slurs related to his sexual orientation by other employees including his manager. Scott Medical Center tried to dismiss the lawsuit, disputing the EEOC’s position that Title VII protects employees from sexual orientation discrimination.

A federal district court in Pennsylvania agreed with the EEOC. “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. Indeed the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.” Sexual stereotyping has been held by the U.S. Supreme Court to violate Title VII. The court went on to note that forcing an employee to fit within a gendered stereotype in any way violates Title VII. The Scott decision is at odds with the decision made by the 7th Circuit Court of Appeals that is to be reheard by the full Circuit.

Fraudulent Use of FMLA Leads to Lawful Termination

2016-11-16T01:00:00.000-05:00

Masoud Sharif and his wife were both employees of United Airlines. They took a scheduled European vacation from March 16 through April 4. Mrs. Sharif had approved vacation for the entire vacation time but Mr. Sharif did not have approved time off for March 30. He called into United to request intermittent FMLA leave for that date relying on the certification already in place for his anxiety disorder.

United Airlines noticed that Mr. Sharif had only used FMLA leave for the lone shift he was scheduled to work during his long vacation. They initiated an investigation. Upon his return, Mr. Sharif was questioned about his absence on March 30. He did not answer directly, first denying being scheduled that day and then claiming to suffer a panic attached after not being able to get a seat for a flight back to the U.S. Unable to produce any evidence to back up his story, United terminated his employment for fraudulent use of his FMLA leave and his dishonesty during the investigation. He sued, claiming that United was retaliating against him for his use of FMLA leave.

The Fourth Circuit Court of Appeals ruled against Mr. Sharif. Fraudulently obtained leave was not protected by the provisions of the Family and Medical Leave Act. The Court stated, “While a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.” The Court did have some discussion about the company’s obligation to investigate but found that United had made “a reasonably informed and considered decision” in deciding to terminate Mr. Sharif.

Are Facebook Ads Discriminatory?

2016-11-15T01:00:00.000-05:00

Three Facebook users are suing the social media giant, claiming discrimination in housing and employment. This discrimination purportedly arises out of the company’s advertising platform. Ad buyers are given the ability to target ads to exclude specific “ethnic affinity” such as “African-American” or “Asian-American.” There is no exclusion of “White or Caucasian Americans.” A publication entitled ProPublica reported that it was able to purchase an advertisement from Facebook in one of its housing categories. It was able to exclude anyone with an “affinity” for African-American, Asian American or Hispanic people. With these exclusions, the ad will then no longer show in the Facebook timelines of users who match characteristics of the excluded group.

In pursuing a possible class action against Facebook, the three current plaintiffs hope to end any illegal uses of these affinity functions but do not want to end Facebook’s Ad Platform. The potential class would include any U.S. Facebook user who has “not seen an employment –or housing-related advertisement on Facebook within the last two years because the ad’s buyer used the Ad Platform’s ‘Exclude People’ functionality to exclude the class member based on race, color, religion, sex, familial status, or national origin.”

Facebook has stated the lawsuit is without merit. “Multicultural marketing is a common practice in the ad industry and helps brands reach audiences with more relevant advertising. Our policies prohibit using our targeting options to discriminate, and they require compliance with the law.”

Overweight Truck Drivers May Lawfully Be Subjected To Additional Testing

2016-11-10T01:00:00.000-05:00

In 2010, Crete Carrier Corporation instituted testing of sleep apnea for drivers with Body Mass Indexes (“BMI”) of 35 and over. This sleep apnea testing was based on recommendations from two advisory committees related to the U.S. Dept. of Transportation. Overweight drivers were targeted because obesity has been shown to cause sleep apnea, which reduces sleep, and makes it more likely that drivers will be drowsy during work hours.

Robert Parker had a BMI over 35. As an employee of Crete, he was advised that he would be undergoing an in-sleep study. Mr. Parker refused. He provided a doctor’s note indicating that the testing was medically unnecessary. Because he refused, Crete took Mr. Parker off of the driving rotation.

The Eighth Circuit Court of Appeals considered whether Crete’s requirement for medical testing violated the Americans with Disabilities Act. To be lawful, medical exams must be job related and consistent with business necessity. In this case, the court of appeals found that the sleep test was job-related as the medical condition it was testing could impair driving. Furthermore, business necessity was shown because an in-lab study was the best way to diagnose the condition. The evidence between obesity and sleep apnea was sufficient for Crete to suspect Mr. Parker of having the condition. Mr. Parker’s unblemished work history did not establish that he did not suffer from sleep apnea. Crete had legitimate non-discriminatory reasons for its test and it had the right to fire Mr. Parker for refusing to submit to a lawful medical examination.

Famed Chef Sued for Pregnancy Discrimination

2016-11-09T01:00:00.000-05:00

Thomas Keller and The French Laundry, his well renowned restaurant in Napa Valley, have been accused of sex discrimination.

Vanessa Scott-Allen worked for Mr. Keller’s New York restaurant for five years. She was regularly promoted and attained the highest server position within the restaurant. In January 2016, Ms. Allen and her husband visited The French Laundry while on vacation in the Bay Area of California. During the restaurant visit, the general manager told her that the restaurant “would love” to have her work there. After returning home to New York, Ms. Allen found out that she was pregnant. She told the general manager at Mr. Keller’s New York restaurant and she also applied for a transfer to the French Laundry. It was her understanding that the information about her pregnancy was relayed to the manager in Napa Valley. The transfer was approved; Ms. Allen gave up her New York lease and shipped their things to California.

As soon as Ms. Allen arrived at The French Laundry, she was asked about her maternity leave plans. Specifically, a French Laundry manager asked her the due date, how long she expected to work before taking leave and the anticipated length of her leave. When Ms. Allen left, she was told that they would get back to her about her schedule. Instead, Ms. Allen was told that the position was no longer available, and in fact that the restaurant had no position available. Ms. Allen believes that there were three open spots at the restaurant. Now, Ms. Allen has sued seeking $5 million in damages as well as attorney’s fees and costs of the suit.

Court Identifies Direct Evidence of Age Discrimination

2016-11-08T01:00:00.000-05:00

After seeing an ad in the local newspaper for an “auto tech” teacher position at a high school, James Smith applied. He had 30 years experience working at General Motors as well as a Bachelor’s degree in automotive and heavy equipment repair. During his interview with the superintendent responsible for hiring, she said to him, “you’re 64, how much longer are you going to work?” Mr. Smith responded that he was in good health and planned to work for many years yet. Other candidates also interviewed for the position. One 42 year-old individual, who knew the superintendent for many years, had children in the district, and had experience was given the chance to observe classes and work as a substitute teacher. Mr. Smith was only invited to observe a class.

The retiring auto tech teacher wrote an email about the 42 year-old candidate. He praised him and suggested, “I think a young instructor will be a great asset to the automotive program.” This teacher also noted that the younger applicant’s recent experience as a substitute teacher meant he knew what it was like in the classroom, and “[h]e seems to have the respect of the students.” The younger applicant was selected.

Mr. Smith sued under the Age Discrimination in Employment Act (“ADEA”). The federal trial court found that the statement made by the superintendent was direct evidence of age discrimination. She made the statement as the decision-maker during their only meeting when the school district was seeking to fill a position. The evidence of discrimination was bolstered by the email from the retiring teacher referring to the “younger” candidate. The third candidate was also allegedly asked about his age. The case will proceed to trial.

Avoid Waiting For Magic Words In Accommodation Requests

2016-11-03T15:42:00.000-04:00

A recent Eighth Circuit Court of Appeals case advises employers that employees need not explicitly request accommodation.

In the case before it, Robert Kowitz suffered from spinal stenosis, which is a degenerative disease of the spine. After undergoing surgery, she returned to her work for Trinity Health as a respiratory therapist. Ms. Kowitz came back to work with certain restrictions, and Trinity Health accommodated those restrictions. Just one month after her return, Trinity asked that all of its respiratory therapists update their basic life support certifications. Updating the certification required both a written exam and physical demonstration of CPR. While Ms. Kowitz was able to pass the written part of the exam, she was unable to complete the physical portion until she completed four months of physical therapy (as instructed by her doctor). Trinity Health fired Ms. Kowitz immediately because she could not complete an essential function of her job, which was to perform basic life support.

Although Ms. Kowitz did not expressly ask for reasonable accommodation with respect to her inability to complete CPR, the appellate court found that she had given sufficient information to put the employer on notice. The fact that she would not be able to get certified in CPR until completing her physical therapy “implied that an accommodation would be required until then.” Trinity Health knew of her condition, her other restrictions, and she had referenced her surgery and ongoing pain in her communications with them. Thus, there was sufficient information for Trinity Health to understand that these communications were a request for accommodation.

Quota Adjustments Must Be Made For Employee With FMLA Leave

2016-11-02T15:41:00.000-04:00

Sandra Holland took time off from her work at The Methodist Hospital to undergo a pacemaker replacement. Her leave was approved under the Family and Medical Leave Act (“FMLA”). Following the procedure, she had to take off intermittent FMLA leave to attend doctor’s appointments.

As part of her Patient Account Representative job, Ms. Holland was required to work on 65 accounts per day. This quota of 65 accounts was based on the hours worked. It was Ms. Holland’s contention that her employer did not deduct her FMLA time from the amount of cases in her quota. She was unable to meet the usual number of cases because of the time she spent on her intermittent FMLA leave.

In response to her claim of interference with FMLA, the federal district court held that FMLA leave might be “illusory” if the employee was held to the same standards as if working the full hours. Under the FMLA, employees may still be required to maintain a certain quality in their work. It is the quantity of work that may have to be adjusted. FMLA provides employees a right to unpaid leave. Thus, employers that deny bonus pay when an employee is not producing at the expected level are not violating FMLA. However, disciplining an employee based on non-adjusted performance standards could reflect that the employer interfered with the employee’s rights under the FMLA.

Question For Jury Whether Pre-Accommodation Job Performance For Termination

2016-11-01T15:40:00.000-04:00

Elizabeth Erickson was both a client and an employee of the Wisconsin Department of Workforce Development’s Division of Vocational Rehabilitation (“DVR”). DVR helps disabled individuals find employment. Ms. Erickson was deaf in one ear. On her application for employment, she noted her deafness and indicated her use of a hearing aid in some circumstances.

Ms. Erickson was hired for a one-year probationary period. Her first two reviews were fine. It was on the third review, at nine months, that her supervisor told her that he had serious concerns. In response, Ms. Erickson disagreed with his assessment, and let him know about her hearing impairment. She also filed a formal request for accommodations that included a doctor’s note outlining how she would really benefit from receiving information in a visual way. The request for accommodation was granted. However, within one month the supervisor brought more issues to Ms. Erickson’s attention. Ms. Erickson objected, asserting that some of the criticisms were based on her job performance before she began receiving accommodation. DVR terminated Ms. Erickson.

DVR tried to have her case dismissed before trial. The federal district court refused to dismiss the case. Finding that DVR’s allowance of only six weeks of accommodations before terminating her were sufficient to allow a jury to believe that DVR had relied upon pre-accommodation job performance in reaching its decision to fire her. Moreover, the court noted that DVR could reasonably be found to have known about her disability since the beginning of her employment, when she self-identified, and failed to provide any accommodation. The timing of the termination in relation to her express request for accommodation could lead a jury to believe that the termination was “an effective denial of her request for accommodation.”

Company Practicing “Onionhead” Must Face Reverse Religious Discrimination Trial

2016-10-27T10:43:00.000-04:00

Cost Containment Group (“CCG”) decided to use a program called “Onionhead” to improve the company’s culture. Designed by the CEO’s aunt, it was a multi-purpose conflict resolution program that included lots of materials and a “Declaration of Virtues of Empowerment.” Employees asserted that they were forced to submit to Onionhead, and they objected to its religious nature. Emails from the aunt showed references to: God, spirituality, demons, Satan, divine destinies, purity, blessings and miracles.

A key document was the “Onionhead Keys and Codes to Living Good” and it was given to employees. Within this document are references to a Divine Plan, heavenly nature, and a statement that “every sacred tribe and religion have codes hidden within their scripts books and scrolls.” Verbal statements provided by the employees reflect instructions to chant or pray in the workplace and not to use lights in order to “prevent demons from entering the workplace through the lights.”

Each employee pursuing this lawsuit was fired by CCG. The EEOC filed suit alleging religious discrimination and reverse religious discrimination claims. The federal district in New York had first to consider whether “Onionhead” was a religion. In reviewing the aunt’s comments, the frequent use of “God” as well as the use of sprits and demons, the court concluded that “Onionhead” was religious in nature. Thus, CCG could be found by a jury to have violated Title VII by trying to impose its religious beliefs on its employees.

Donald Trump Bringing Sexual Harassment Front and Center

2016-10-26T10:44:00.000-04:00

The recent leaked footage of Donald Trump and Billy Bush reducing women to sexual objects and boasting about sexual assault has pushed sexual harassment once again to the forefront of a national conversation. Mr. Trump’s belief that calling the discussion “locker room talk” excused him from culpability reflects an utter denial of what qualifies as sexual harassment. In reporting about the incident, U.S. News and World Report reflected back on Anita Hill’s testimony against then-Supreme Court nominee Clarence Thomas and asked “[H]as the nation really evolved on the issue of sexual harassment and assault.” While certainly some progress has been made, the attacks on Mr. Trump’s many accusers as well as the disregard by some of the importance of the allegations suggests that there is still quite a bit of progress to be made.

The Equal Employment Opportunity Commission has defined sexual harassment to include: unwelcome sexual advances; requests for sexual favors; and other verbal or physical conduct of a sexual nature when the conduct implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Conduct described by Mr. Trump (“grabbing women by their p----y”) and the conduct alleged by various women against Mr. Trump (forcibly kissing them) would all likely be found as unlawful sexual harassment. For harassment to be unlawful, it must be unwelcome and must be “sufficiently severe or pervasive.” “Locker room talk” or “boys will be boys” are not valid legal defenses.

Following the release of the tape, the New York Times reported on the costs of harassment to women in the workplace. “The burden of avoiding and enduring sexual harassment and assault results, over time, in lost opportunities and less favorable outcomes for girls and women. It is effectively a sort of gender-specific tax that many women have no choice but to pay.” Women may be reluctant to come forward; they often pause and weigh the consequences of reporting harassment. The national discussion that has ensued provides a good time for employers to make sure that all of their employees, from top to bottom, understand what conduct qualifies as sexual harassment in the workplace.

EEOC Targets Prescription Drug Testing Policies

2016-10-25T10:44:00.000-04:00

Two recent cases filed by the Equal Employment Opportunity Commission (“EEOC”) reflect its current interest in employer related drug testing policies.

The first case was filed against Happy Jack’s Casino in South Dakota. An offer of employment was withdrawn after the prospective employee failed a pre-employment drug test. Her test revealed the use of hydrocodone for neck and back pain. In its lawsuit, the EEOC has challenged Happy Jack’s refusal to allow the applicant to show her underlying impairment and necessity for taking the prescription drugs. Also being challenged is Happy Jack’s policy that required all employees to disclose both prescription and non-prescription drug use regardless of their job position. The EEOC has also asserted that Happy Jack’s has engaged in unlawful disability-related questioning.

In the second case, the EEOC is pursuing claims on behalf of a Georgia physician who was fired for his use of narcotic pain medication to treat chronic pain. The doctor in question provided a note reflecting his need for narcotic pain medications to treat a medical condition. Within days, the doctor was fired. The EEOC has asserted that the doctor’s performance was not impacted by his pain medication use and has charged that the doctor was fired both based on his disability, and because he was perceived as disabled because of his use of narcotics. In its statement, the EEOC urged employers to conduct individualized assessments when there is a concern about the employee’s ability to perform his or her position.

Title VII Protects Transgender Police Officer’s Bathroom Use

2016-10-20T01:00:00.002-04:00

Bradley Roberts, while presenting as a female, was hired by the Clark County School District as a police officer. For 17 years, that employment was without incident. However, in 2011, Mr. Roberts began physically identifying himself as male through his dress and grooming. He began to use the men’s bathroom at work. In response to complaints about his use of the men’s bathroom, the commanding officers met with Mr. Roberts. He let them know that he was transitioning to a male. They responded by directing him to use only the gender-neutral bathroom. Not directly responding to this instruction, Mr. Roberts submitted a letter that notified his superiors that he would be changing his name, that he wanted to be referred to with male pronouns, and that he would be complying with the male grooming code.

The school district responded with a “no” to all aspects of this letter, asserting that no changes would be made until he could provide documentation of a name and sex change. Thereafter, the school district allowed him to use his male name on an informal basis only. With respect to his bathroom usage, he was forbidden from using the men’s bathroom until he had documented evidence of a sex change. Until that time, Mr. Roberts was also prohibited from using the women’s bathroom and was only allowed to use the gender-neutral bathroom.

Title VII does not expressly prohibit “gender” discrimination but it does prohibit “sex” discrimination. The Ninth Circuit Court of Appeals, as well as several other circuits, have held that “sex” discrimination includes stereotypes “because of sex.” Sex stereotypes include gender identity. Clark County School District banned Mr. Roberts from the women’s bathroom because he no longer behaved like a woman. It banned him from the men’s bathroom because he was biologically female. The Nevada federal district court deciding this case found Mr. Roberts had been treated differently because of his biological sex and his gender identity, both reasons arising out of his transgender status. This differential treatment was held to be sex discrimination in violation of Title VII.

Retaliation Costs Chicago Hospital $1 Million Plus

2016-10-19T01:00:00.000-04:00

Dr. Brett Ohlfs used to be an ER doctor for Oak Lawn Hospital. He claimed that he was fired in retaliation for reporting sexual harassment. Dr. Ohlfs believed that a fellow ER physician was sexually harassing the female residents (doctors in training.) This other doctor had purportedly made sexual advances towards the women, showed them naked pictures of himself, and coerced them into have sexual relationships with him. Dr. Ohlfs was particularly concerned about the authority the other doctor had over these residents.

Dr. Ohlfs reported the conduct to hospital administrators. He claimed that the hospital dismissed his report and eventually dismissed him. Dr. Ohlfs sued. It was a particularly contentious lawsuit as the hospital also sued Dr. Ohlfs for secretly recording conversations with his department head; and the hospital also asserted that it was investigating Dr. Ohlfs in connection with the care of one of his patients. The Illinois agency charged with handling discrimination claims investigated and found “substantial evidence” of wrongful termination. The jury confirmed this finding with its verdict of $1 million.

The hospital, owned by Advocate HealthCare, has not yet decided whether to appeal. However, it does assert that it investigated Dr. Ohlfs’ report of harassment at the time that it was made. The investigation revealed that no further action was warranted. The doctor accused of sexual harassment still works for the hospital. Advocate has continued to assert that it fired Dr. Ohlfs for non-discriminatory and legitimate reasons.

11th Circuit Greenlights Disparate Impact Age Discrimination

2016-10-18T01:00:00.000-04:00

In an unexpected move, the Eleventh Circuit Court of Appeals has sanctioned a form of age discrimination.

Richard Villarreal applied for a position with R.J. Reynolds as a territory manager. The company sought a candidate “2-3 years out of college” who “adjusts easily to changes.” R.J. Reynolds wanted to avoid applicants “in sales for 8-10 years.” Mr. Villarreal is over 40 years of age. While these hiring guidelines do not expressly exclude older workers, the impact of the guidelines will be to exclude older workers.

The Age Discrimination in Employment Act (“ADEA”) prohibits intentional age discrimination both in hiring job applicants and in firing employees. A separate provision of the ADEA precludes employer policies that have the effect of discriminating against employees based on their age. It states that it is “unlawful for an employer…to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Because this provision does not specifically include “job applicants” in its protection, the 11th Circuit has ruled that it does not apply to job applicants. This decision contravenes earlier 11th Circuit and other Circuit court decisions. Those other decisions have held that job applicants are in fact protected from disparate impact age discrimination.

Ohio Restaurant Agrees to $1 Million Settlement + Extensive New Requirements

2016-10-13T07:00:00.000-04:00

Texas Roadhouse, a franchise in Ohio, has agreed to a $1.4 million dollar settlement of sexual harassment and retaliation claims brought by female servers. The restaurant owner and its management company are all part of the settlement.

The U.S. Equal Employment Opportunity Commission brought the suit on half of the women after they claimed that the restaurant manager, Eric Price, created a sexually offensive working environment and engaged in quid pro quo harassment. Mr. Price was alleged to have offered particular employment benefits to female servers and hostesses to induce them to give into his sexual demands. Those workers who did not submit were threatened with retaliation. These women, including teenagers, were subjected to unwelcome touching and humiliating remarks about their bodies and sexuality. If these women complained, Mr. Price manipulated their work schedules and promotion chances. The harassment continued over a three year time period. Mr. Price was only terminated when he was caught on video touching a 17-year-old employee in his workplace office.

In addition to the monetary settlement, Texas Roadhouse has multiple changes it must make. First, it may not re-hire Mr. Price in any capacity. Next, the twelve women must be offered their jobs back. With a five-year consent decree, the restaurant operator and the management company must track and report all gender discrimination and retaliation in all of their restaurants. Training must be provided to all employees with supervisory and HR employees to receive additional training on their duty to monitor and investigate. Texas Roadhouse settled shortly after losing its motion for summary judgment.

Three New Laws From California That May Impact Employers

2016-10-12T07:00:00.000-04:00

California employees can no longer be required to arbitrate or litigate their claims outside of their state.

Beginning on Jan. 1, 2017, the California Labor Code will prohibit employers from requiring an employee “who primarily resides and works in California” to “adjudicate” outside of California a claim that arose in the state. This law also prevents employers from requiring that the law of another state be used in California to adjudicate the claim. Employees that are individually represented by counsel and are able to negotiate their agreements may be exempt from this code section.

In addition, employers in California may no longer inquire about possible employee convictions in juvenile court. Employers may not ask any information about the juvenile court’s adjudication. Prior to the passage of this law, criminal convictions were valid inquiries by employers.

Lastly, all single occupancy restrooms in any business establishment must be labeled as “all gender” and be universally accessible. This law will go into effect in March 2017. No bathroom with one toilet and/or one urinal with a user-operated locking mechanism may be designated as male or female-only.

Syrian Refugees Are Protected From Discrimination

2016-10-11T07:00:00.000-04:00

The Seventh Circuit Court of Appeals has ruled that a policy denying benefits to Syrian refugees was a form of national origin discrimination.

Governor Mike Pence enacted an Indiana policy that barred federal funds from being used to help Syrian refugees with social services, job training or medical help. These benefits were available to refugees from other countries. Governor Pence had argued that the exclusion of Syrian refugees was not discriminatory because it was not based on nationality. Rather, it was argued that these refugees pose a threat to the safety of Indiana’s residents. In the court’s opinion, it stated that this argument was: “the equivalent of his saying…that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as targeting Syrian refugees is discrimination on the basis of nationality.”

The court further noted that a central purpose of preventing discrimination was to prevent, in this case the government, from using stereotypes to justify wholesale discrimination against innocent people who share the same national origin. Both the conservative justices on the panel joined in the decision. This 7th Circuit opinion relied on a federal refugee statute that barred discrimination on the basis of nationality.

Wellness Plan Against ADA

2016-10-06T08:23:00.000-04:00

Orion Energy Systems’ health plan included a wellness program. Participation in the wellness program was identified as voluntary. Participating employees had to submit to a health risk assessment, which entailed filling out a health history questionnaire, undergoing a biometric screening and a blood draw. Employees who completed the above health risk assessment and a health screen did not have to pay monthly premiums for their health insurance. Orion would cover that cost. However, employees who did not submit to above requirements had to pay 100% of their health insurance coverage.

One employee objected to the health risk assessment requirements. She was fired just three weeks after opting out, purportedly for non-discriminatory and legitimate reasons. The Equal Employment Opportunity Commission filed suit on her behalf, asserting that the Americans with Disabilities Act (“ADA”) prevented employers from requiring medical examinations or making medical inquiries that could involve possible disabilities. The ADA does allow for voluntary medical examinations that are a part of employer’s on-site health programs.

A federal trial court ruled in part for the employer and in part for the EEOC. It rejected Orion’s argument that ADA’s “safe harbor” provision protected wellness plans from ADA scrutiny. The “safe harbor” provision allows employers to gather medical information for the purpose of making insurance decisions. The wellness program did not fall within this section because its purpose was not to consider insurance risks. In its recent guidance, the EEOC stated that wellness programs do not fall within “safe harbor” and this court granted deference to the EEOC’s interpretation. On the other hand, the court did find that the program was voluntary, even if there was great expense in not participating. As such, it was lawful under the ADA. This case is at odds with another district court case in Wisconsin.