RECENT NEWS Failure to Complain About Sexual Harassment Second Time Results in Dismissal
Hispanic Painters Discriminatorily Harassed
Affair Ends, Evaluation Plummets No Case
Lateral Transfer Not Retaliatory
Complaint To Manager Involved With Harassment Prevents Summary Judgement
Equal Pay Act Requires Only One Employee Of The Opposite Sex To Be Paid Less
Plaintiff Barred From Filing Title VII Action After Receiving Right-To-Sue Letter
Employer May Change Its Mind About FMLA Approval
Stare At Your Own Risk
But I Did a Good Job
ADA Claim Lost Due to Subsequent Employment
A Stressful Environment Does Not Amount to Constructive Discharge
Alleged Harasser Sues
Punitive Damages Available For Retaliatory FLSA Firing
Employment Discrimination Class Actions Alive and Well
Sixth Circuit Uses Mother Goose to Sum Up Trial Court’s Decision-Then Reverses
No Free Pass to Harass
Deplorable Harassment Excused
Employer Liable For Manager Ignorance
Lateral Transfer Not Retaliatory
Forced Blood Test Doesn’t Violate ADA
Attorneys’ Fee Award Dwarfs Damage Award
Muslim Driver Not Entitled to Longer Lunch
Lifting Restriction Not ADA Disability
Gay Man’s Title VII Claim Rejected
31 Reasons For Firing Bars ADEA Claim
12 Month FMLA Period
Employees Prior Work as a Prostitute Inadmissible in Sexual Harassment Case
Repetitive Stress Disorder Not a Protected Disability Under ADA
Disability Plans May Provide Limited Benefits for Mental Disabilities
Lifitng Restriction Not ADA Disability
Sexually Suggestive Pictures
FMLA Permits Suits Against Individual Supervisors
ADA Claim Depends on Wording of Complaint
Fraudulent Disability Claim
Successor Employer Liable Under Title VII
Silent Suffering is not Tangible Employment Action
ADA Requires Employer Probing About Accomodtations
What is a Settlement?
Male Stereotypes
Faulty Business Judgement
ADEA Retaliation Suit Requires Plaintiff to be Qualified
FMLA Requires Written Notice to Employee
Lower Benefits to Older Workers is not ADEA Violation
Disparate Impact Claims Under the ADEA
Costiler Older Worker Lawfully Fired
Liar Gets Case Thrown Out
ADA Claim Depands on Wording of Complaint
CHINESE GOVERNMENT DELEGATION TRAINED BY INTERACTIVE EMPLOYMENT TRAINING,INC. TO IMPROVE LABOR RELATIONS IN CHINA
No Tangible Employment Action Found
Policy and Training Provides Punitive Damages Protection
Gay Partners, But Not Unmarried Heterosexual Couples, Get Benefits
Union Ordeded To Keep Paying
Punitive Damages and Municipalities
Sovereign Immunity Works For States In FMLA Cases, but Not In Title VII Cases
Employee With Carpal Tunnel Syndrome Not Protected by ADA
Mandatory Arbitration Policy Ruled Unenforceable Due to Fee Splitting
Racial Slurs Based on Wrong Race
No Beard Policy Violates Title VII
Employee Who Refuses to Comply with Affirmative Action Plan Protected by Title VII
Driving to Work is Not Major Life Activity
$6.24 Million Age Discrimination Verdict Overturned
Union Liability Under Title VII Based on Number of Members
Federal Court Finds Discrimination Becasue Plan Provides For No Contraceptive Coverage
Request fot Unlimited Sick Days Held Not to be Reasonable
Maine Requires Health Insurance Coverage for Domestic Partners
Sexual Harassment Must be in Employee’s Orbit
FMLA’S Intermittent Leave Provision Is Not For Rehabilitation
The ADA Does Not Require Preferential Treatment
ADA Requires Employees to Answer Reasonable Requests About Medical Conditions
Male Employee Was Not Constructively Discharged
Who is the Harasser?
The Civil Rights Tax Relief Act of 2001 Introduced in Congress
Employee’s Resignation Prevents Failure to Accommodate Claim
No Cap On Front Pay
The ADEA and Foreign Nationals
Demands For Sex and Racial Slurs
ADA Requires Individualized Assessment
Affirmative Defense Rejected
Who is the Employer ?
Chronic Depression Not a Disability
LESSON TO BE LEARNED FROM THE $2.6 MILLION TWA SEXUAL HARASSMENT CLASS ACTION SETTLEMENT ANNOUNCED MAY 24 BY THE EEOC CBA Bars Title VII Lawsuit
Picking Comparators
Excessive Force Against African American
100% Healed
Individual Assessments
Medical Exams
Individual Liability Under §1983
Police Officer’s Pin
Disability Harassment Violates ADA
Gay Relationships v. Religious Beliefs
Flight Attendant Misses Flight
A Noose Is Not Enough
Negative Evaluations Not Adverse Employment Action
Essential Job Duties Not Linked to Time
Union Stewards Are Union Employees Arbitration Agreement Unenforceable
Discrimination Based on Effeminacy Is Title VII Violation
US Supreme Court Allows Enforcement of Arbitration Provision
Release Signed by HR Director Doesn’t Release Claim For Indemnification
Church of Christ Members Only
Vulgar Fun
US Supreme Court Allows Enforcement of Arbitration Provision
Female Wrestler Survives Summary Judgment
Manager Lands in Jail For One Year
Settling Age Discrimination Cases
Arbitrating Sexual Harassment Claims
Health Plans and Prescription Contraceptives
Reasonable Response To Harassment Claims
Too Scared To Complain
FAILURE TO COMPLAIN ABOUT SEXUAL HARASSMENT SECOND TIME RESULTS IN DISMISSALA sales clerk complained about sexual harassment. The employer took corrective action and instructed her to report any renewed harassment. Her failure to report renewed harassment resulted in the dismissal of her claim. (Woods v. Delta Beverage Group, Inc. 5th Cir.)
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HISPANIC PAINTERS DISCRIMINATORILY HARASSEDThree Hispanic painters worked 3 weeks, and while in the office for 15 minutes a day, they were subjected to racial slurs. The District Court dismissed the case, holding that there was not enough time for the harassment to be pervasive. The 10th Circuit reversed, holding that based on a totality of the circumstance analysis, a jury could find the harassment pervasive. (McCowan v. All Star Maint. Inc.)
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AFFAIR ENDS, EVALUATION PLUMMETS NO CASE A consensual sexual relationship ends and the female employee receives her first negative evaluation. She then complained to Human Resources. Her sexual harassment case fails because she was harassed due to a failed relationship, not her gender. The retaliation claim fails because the negative evaluation came before the complaint to Human Resources. (Pipkins v. Temple Terrace, Fla 11th Cir.)
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LATERAL TRANSFER NOT RETALIATORY A lateral transfer without a loss in benefits or responsibilities is not an adverse employment action. The court observed that “not everything that makes an employee unhappy is an actionable adverse action.” (Stutler v. Illinois Dept. of Corrections (7th Cir.)
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COMPLAINT TO MANAGER INVOLVED WITH HARASSMENT PREVENTS SUMMARY JUDGMENT A former salesperson sued a car dealership for sexual harassment. The court denied summary judgment. First, the dealership gave one of the employee’s leads to another employee. Since a jury could find this to be a tangible employment action, a trial is needed. Secondly, the employer’s discriminatory harassment policy permitted complaints to any supervisor, which included a manager who had harassed the employee. The employer therefore could not establish that the employee unreasonably failed to complain pursuant to its policy. (Morton v. Steven Ford Mercury of Augusta, Inc. D. Kan)
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EQUAL PAY ACT REQUIRES ONLY ONE EMPLOYEE OF THE OPPOSITE SEX TO BE PAID LESS A woman claiming lower pay than a male comparator does not automatically lose her case because another male is paid an equivalent wage. (Hennick v. Schwans Sales Enters, N.D. Iowa)
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PLAINTIFF BARRED FROM FILING TITLE VII ACTION AFTER RECEIVING RIGHT-TO-SUE LETTER An employee’s claim of race discrimination was dual filed with the EEOC and a city agency. The city agency closed the case after six years. A right-to-sue letter was issued by the EEOC. The Eighth Circuit barred the subsequent federal suit because of laches, finding that plaintiff’s delay in filing was unreasonable and inexcusable and that defendant was prejudiced by the delay. (Brown-Mitchell v. Kansas City Power & Light Co.)
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EMPLOYER MAY CHANGE ITS MIND ABOUT FMLA APPROVAL The DOL regulations say that once an employer grants FMLA leave, then the employee gets FMLA leave. The Second Circuit now joins the Seventh and Eleventh Circuits holding that an employer may change its mind if it discovers that the employee did not work 1,250 hours during the previous 12 months. (Woodford Community Action of Greene County, Inc.)
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STARE AT YOUR OWN RISK A co-worker’s repeated stares may be enough to constitute a sexually hostile working environment according to an appellate court in California (Birschtein v. New United Motor Manufacturing Inc.) Despite the employer’s order to stay away from Birschtein, the co-worker continued to sit at a distance and stare at her for as long as five to ten minutes at a time. The court ruled that the employer’s failure to stop the staring may be seen as a failure to prevent discriminatory harassment.
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BUT I DID A GOOD JOB An employee’s perception of his own performance doesn’t prove pretext. In order to challenge a discharge for poor performance, the employee must show that there is no basis for the employer’s stated reason for the discharge. (Olsen v. Marshall & Ilsley Corp. 7th Cir.)
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ADA CLAIM LOST DUE TO SUBSEQUENT EMPLOYMENT A depressed employee did not have a protected disability since he obtained subsequent employment. His continued employment evidenced that the disability was short-lived and did not prevent him from working. (Swanson v. University of Cincinnati 6th Cir.)
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A STRESSFUL ENVIRONMENT DOES NOT AMOUNT TO CONSTRUCTIVE DISCHARGE The Third Circuit found that a stressful environment would not compel a reasonable person to resign. (Duffy v. Paper Magic Group, Inc.)
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ALLEGED HARASSER SUES A Black employee accused of sexual harassment alleged race discrimination because the employer fired him without investigating the sexual harassment claim. (Taylor v. Cramer D. Kan)
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PUNITIVE DAMAGES AVAILABLE FOR RETALIATORY FLSA FIRINGAn employee who was fired in retaliation for reporting wage and benefit improprieties is entitled to recover punitive damages under the FLSA. A federal court in Pennsylvania interpreted the phrase “legal or equitable relief” under the anti-retaliatory provision of the FLSA to include punitive damages. Marrow v. Allstate Security & Investigative Services Inc. The court reasoned that deterring employers from punishing workers who exercise FLSA rights by allowing punitive damages helps effectuate the purposes of the law.
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EMPLOYMENT DISCRIMINATION CLASS ACTIONS ALIVE AND WELLClass certification in employment discrimination cases is still possible even if money damages are sought in addition to injunctive or declaratory relief, according to the Second Circuit Court of Appeals in Robinson v. Metro-North Commuter Railroad Co. By rejecting a “bright line rule” barring class certification in cases where money damages are sought, the Second Circuit bucked the trend set by other circuits. Instead, the court set up a balancing test whereby class certification could be granted if the “positive weight of value” to the plaintiffs of the monetary relief is predominate. This case by case approach will likely make the granting of class status in employment discrimination cases easier.
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SIXTH CIRCUIT USES MOTHER GOOSE TO SUM UP TRIAL COURT’S DECISION-THEN REVERSES “Georgie Porgie pudding and pie Goosed the men and made them cry Upon the women he laid no hand So it cost his employer 300 grand.”The Sixth Circuit reversed, in part, because “upon the women he laid no hand.” A sexually hostile workplace without any gender discrimination is not actionable. (EEOC v. Harbert-Yeargin, Inc.)
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NO FREE PASS TO HARASS Ex-lovers whose fighting spills over to the workplace are not typically covered by Title VII, which does not prohibit harassment based on personal animosity. However, the Eleventh Circuit found that “a prior intimate relationship does not give . . . a free pass to harass.” A jury verdict in favor of a female restaurant worker may therefore not be overturned by the district court. (Lipphardt v. Durango.)
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DEPLORABLE HARASSMENT EXCUSED The Seventh Circuit found that disgusting comments of a sexual nature are excused. They were made because the harasser hated the woman’s husband, not due to her gender. (Rizzo v. Sheahan)
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EMPLOYER LIABLE FOR MANAGER IGNORANCE A manager did not know that age discrimination was unlawful. Because the employer did not train the manager, the Seventh Circuit found reckless indifference. (Mathis v. Phillips Chevrolet, Inc.)
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LATERAL TRANSFER NOT RETALIATORY A lateral transfer without a loss in benefits or responsibilities is not an adverse employment action. The court observed that “not everything that makes an employee unhappy is an actionable adverse action.” (Stutler v. Illinois Dept. of Corrections (7th Cir.)
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FORCED BLOOD TEST DOESN’T VIOLATE ADA A cut finger caused co-workers to come into contact with a janitor’s blood. The employer may require a blood test for hepatitis and HIV which was found in this case to be “job-related and consistent with business necessity.” (Boyer v. KRS Computer and Business School D. Minn.)
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ATTORNEYS’ FEE AWARD DWARFS DAMAGE AWARDA successful plaintiff was awarded $60,000. The employer also had to pay $350,000 for plaintiff’s attorney. (Schott v. Rush – Presbyterian N.D. Ill.)
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MUSLIM DRIVER NOT ENTITLED TO LONGER LUNCH A Muslim driver requested a longer lunch break on Fridays in order to attend prayer services. His employer permitted him to bid for another schedule; two were available which would enable him to attend services. The court found that the issue is not which accommodation is better; the question is whether the employer’s accommodation is reasonable. In this case the offered accommodation was reasonable because the employer did not want to violate the collective bargaining agreement. (Elmenayer v. ABF Freight Systems E.D.N.Y.)
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LIFTING RESTRICTION NOT ADA DISABILITY A nurse was restricted from lifting over 40 pounds after a diskectomy. The Eight Circuit holds that the general lifting restriction without more is insufficient to constitute a disability protected by the ADA. (Brunko v. Mercy Hosp.)
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GAY MAN’S TITLE VII CLAIM REJECTED A male employee assaulted by co-workers and subjected to anti-gay comments did not have a Title VII claim because (1) the harassers were not motivated by sexual desire; (2) the harassers were not generally hostile toward one sex; and (3) the harassers were not punishing the plaintiff because of noncompliance with gender stereotypes. (Bibby v. Philadelphia Coca Cola Bottling Co., Third Circuit).
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31 REASONS FOR FIRING BARS ADEA CLAIM An elementary school teacher was fired for 31 reasons grounded in unprofessional and insubordinate behavior. Because there was no concrete evidence that younger workers were treated more favorable and because the teacher could not prove that any of the 31 reasons were pretext for age discrimination, the age claim was dismissed on summary judgment. (Horwite v. Board of Educ., Avoca Sch., Dist. Seventh Circuit).
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12 MONTH FMLA PERIOD America West Airlines told employees in a handbook that they could take 12 weeks within any 12 month period. The Airline argued it was a rolling 12 month period. An employee needed a 12 month calendar period. The Ninth Circuit ruled that the handbook was not clear, so whatever method of calculating the 12 month period that helps the employee will be used. (Bachelder v. America West Airlines).
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EMPLOYEES PRIOR WORK AS A PROSTITUTE INADMISSIBLE IN SEXUAL HARASSMENT CASE A plaintiff’s history as a call girl and other evidence of sexual history is not permitted at trial. (Chamblee v. Harris & Harris, Inc. S.D.N.Y).
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REPETITIVE STRESS DISORDER NOT A PROTECTED DISABILITY UNDER ADA A newspaper reporter who could not type or write for extended periods because of a repetitive stress disorder did not have a protected disability because she was not limited in a major life activity. The Court found the major life activity of performing manual tasks included a broad range of activities that she could perform such as shopping, driving, and dressing. (Thornton v. McClatchy, Ninth Circuit)
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DISABILITY PLANS MAY PROVIDE LIMITED BENEFITS FOR MENTAL DISABILITIES A District Court ruled that a disability benefit plan may discriminate against mental disabilities with respect to benefits. The Third, Fourth, Sixth, Ninth, Tenth and D.C. Circuits have agreed. Only one District Court in New Hampshire disagrees. (El-Hajj v. Fortis Benefits D.ME.)
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LIFTING RESTRICTION NOT ADA DISABILITY A nurse was restricted from lifting over 40 pounds after a diskectomy. The Eight Circuit holds that the general lifting restriction without more is insufficient to constitute a disability protected by the ADA. (Brunko v. Mercy Hosp.)
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SEXUALLY SUGGESTIVE PICTURESAn employee was livid after a picture of a woman with exposed breasts who bore a striking resemblance was circulated at work. The employer identified nine responsible employees and required them to take sexual harassment prevention training. Disciplinary measures were also taken. An apology by the three main culprits was also forthcoming. Because the employer’s actions were swift and ended the harassment, the employer could not be held liable. (Rheineck v. Hutchinson Technology Inc. Eight Circut).
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FMLA PERMITS SUITS AGAINST INDIVIDUAL SUPERVISORS – EVEN IN THE PUBLIC SECTOR. Courts are split over whether the FMLA permits suits against supervisors in the public sector. A District Court found that a postal worker with a knee problem could sue the Postmaster General and his supervisor individually. (Carter v. USPS W.D.Ky.)
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ADA CLAIM DEPENDS ON WORDING OF COMPLAINT If a doctor suffering from depression and panic disorder had alleged that his employer regarded him as limited in the major life activity of working, he would have lost since he was not unable to work in a “broad class” of jobs. However, by alleging that he was regarded as having a limitation in his ability to cognitively think, his claim survived. (Mattice v. Memorial Hosp. of South Bend Inc. 7th Cir.)
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FRAUDULENT DISABILITY CLAIM When asked to work Saturdays, an employee who had worked 45 years for the NY Post went on disability after complaining of chest pains. After learning more about the Post’s disability plan, he sought clearance to return to work and reversed his decision to resign. The employee was thereafter fired. An employer’s good faith belief that the employee attempted to commit fraud in his disability application resulted in dismissal of his case. (Roge v. NYP Holdings Inc. 2nd Cir.)
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SUCCESSOR EMPLOYER LIABLE UNDER TITLE VII
After suffering a $170,000 judgement for sexual harassment, a company sold all its assets. The buyer which was on notice about the judgment continued the operation. The buyer was liable as a successor employer for the judgement. (EEOC v. SWP Inc. N.D. Ind.)
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SILENT SUFFERING IS NOT TANGIBLE EMPLOYMENT ACTION A raise and promotion because a woman “silently suffered” sexual advances is not a tangible employment action. The employer’s swift corrective action after the woman complained resulted in the dismissal of her case. Her claim that she delayed complaining because she had to collect evidence and determine whether the harasser was simply “interested” or a “predator” did not excuse the delay of her complaint. (Matvia v. Bald Head Island Management Inc. 4th Cir.)
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ADA REQUIRES EMPLOYER PROBING ABOUT ACCOMMODATIONS
An employee’s panic attacks from climbing resulted in a doctor’s note requesting an accommodation. An employee may not simply dismiss an accommodation as inconvenient. The employer should have looked into viable alternatives. (Skerski v. Time Warner Cable Co. 3rd Cir.)
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WHAT IS A SETTLEMENT? After a settlement conference, the employer thought a settlement was reached. The employee subsequently decided to continue her case. Because material terms, such as the status of a workers’ compensation claim and scope of a non disparagement clause, were not agreed upon, the “settlement” could not be enforced. (Higbee v. sentry Insurance Co. 7th Cir.)
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MALE STEREOTYPES
A male employee was harassed because he was perceived as effeminate. The Ninth Circuit found that since the employee was harassed for not fitting his co-workers’ view of a male stereotype, his Title VII claim survived. (Nicholas v. Azteca Restaurant Enterprises Inc.)
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FAULTY BUSINESS JUDGEMENT A Vice President could not prove age or disability discrimination by showing that a job evaluation was bogus. A court will not second guess a good faith evaluation, even if unwarranted. (Sprenger v. Federal Home Loan Bank of Des Moines 8th Cir.)
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ADEA RETALIATION SUIT REQUIRES PLAINTIFF TO BE QUALIFIED
An employee suffering from pancreatitis told his insurance company that he could not return to work. The Fifth Circuit holds that when an employee can’t work, he can’t claim retaliation under the ADEA. (Holtzclaw v. DSC Communications Corp.)
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FMLA REQUIRES WRITTEN NOTICE TO EMPLOYEE
A nurse informed her employer that a doctor had put her on leave for about a month. The employer was aware of the employee’s symptoms, which included vomiting and chest pains. The employee was fired after failing to provide a doctor’s note within 15 days. The employer violated the FMLA by not providing written notice about the FMLA. (Wilson Lemington Home for the Aged W.D. PA.)
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LOWER BENEFITS TO OLDER WORKERS IS NOT ADEA VIOLATION A voluntary early retirement plan provided a health care stipend which was reduced by $2,000 to 65 year olds who were eligible for Medicare. The employer was able to have the case dismissed because different treatment is permitted in voluntary early retirement plans. (Gutchen v. Board of Governors of University of RI D.R.I.)
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DISPARATE IMPACT CLAIMS UNDER THE ADEA
Disparate impact occurs when a policy impacts a protected group more harshly. The Eleventh Circuit siding with the First, Third, Sixth, Seventh and Tenth Circuit do not permit ADEA disparate impact claims. The Second, Eighth and Ninth Circuit disagree. (Adams v. Florida Power Corp.) Back to top
COSTLIER OLDER WORKER LAWFULLY FIRED
Plaintiff’s self-serving, conclusory affidavit doesn’t make an ADEA case. Dismissing a 60 year-old employee because, based on seniority and benefit level, he costs more to employ does not violate the ADEA. (Elliot v. British Tourist Authority S.D.N.Y.) Back to top
LIAR GETS CASE THROWN OUT
An alleged sex discrimination victim lied about a previous employment related lawsuit and prior therapy. The Eight Circuit affirmed that dismissing the case was an appropriate punishment.(Martin v. Daimler Chrysler Corp.)Back to top
ADA CLAIM DEPENDS ON WORDING OF COMPLAINT
If a doctor suffering from depression and panic disorder had alleged that his employer regarded him as limited in the major life activity of working, he would have lost since he was not unable to work in a “broad class” of jobs. However, by alleging that he was regarded as having a limitation in his ability to cognitively think, his claim survived. (Mattice v. Memorial Hosp. of South Bend Inc. 7th Cir.)Back to top
CHINESE GOVERNMENT DELEGATION TRAINED BY INTERACTIVE EMPLOYMENT TRAINING, INC. TO IMPROVE LABOR RELATIONS IN CHINA Back to top
NO TANGIBLE EMPLOYMENT ACTION FOUND
The President demanded to have dinner and drinks with the VP of Legal Affairs – without her husband and kids. The VP rebuffed and had her cell phone and car taken away, was assigned boring work and was not interviewed for the General Counsel position. The Seventh Circuit found the incidents to be isolated and minor. There was no employer liability because there was no adverse tangible employment action. (Murray v. Chicago Transit Auth.)Back to top
POLICY AND TRAINING PROVIDES PUNITIVE DAMAGES PROTECTION A male employee was sexually propositioned and harassed by his gay manager. The employee was subsequently fired. The Seventh Circuit found that since the employer had promulgated a discriminatory harassment policy and provided discriminatory harassment prevention training, there is nothing else the employer could have done since it had no knowledge of the conduct. The employer could therefore not be liable for punitive damages. (Cooke v. Stefani Management Services Inc.)
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GAY PARTNERS, BUT NOT UNMARRIED HETEROSEXUAL COUPLES, GET BENEFITS The Chicago Board of Education extended spousal health benefits to gay, but not heterosexual, unmarried couples. The Seventh Circuit did not find a violation since gay couples cannot marry. (Irizarry v. Chicago Board of Ed.)
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UNION ORDERED TO KEEP PAYING After being held liable for discrimination against non-whites, a union was ordered to pay $2.6 million and $900,000 a year until further notice following back pay hearings. The Second Circuit found that district courts have broad discretion to fashion a remedy. (EEOC v. Local 638, Local 28 Sheet Metal Workers Int’l Ass’n)
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PUNITIVE DAMAGES AND MUNICIPALITIES A Federal Court overturns a $1 million punitive damages award under the New York City Code. NYC had not waived its sovereign immunity from punitive damages. Punitive damages are not available against municipalities unless there is legislative intent to permit such damages. (Katt v. New York City, S.D.N.Y.)
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SOVEREIGN IMMUNITY WORKS FOR STATES IN FMLA CASES, BUT NOT IN TITLE VII CASES On the same day, the Eighth Circuit held that Congress clearly intended States to be covered by Title VII and the Eleventh Circuit found that sovereign immunity protects States from FMLA claims. Both Courts looked to legislative intent to determine if sovereign immunity applied. (Okruhlik v. University Of Ark., 8th Circuit and Lizzi v. Alexander, 4th Cir.)
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EMPLOYEE WITH CARPAL TUNNEL SYNDROME NOT PROTECTED BY ADA An airline gate attendant with carpal tunnel syndrome had numerous physical restrictions with respect to lifting, pushing, pulling and standing. The employee was placed on restricted duty for one year. She was then placed on unpaid medical leave, and sued. The First Circuit found that since the employee had no protected disability, she was not entitled to an accommodation under the ADA. The employee’s condition, taking into account her skills and abilities, did not substantially limit her in the major life activity of working. (Gelabert-Ladenheim v. American Airlines Inc.)
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MANDATORY ARBITRATION POLICY RULED UNENFORCEABLE DUE TO FEE SPLITTING Win or lose, employees are required to split the cost of arbitration under an arbitration agreement. The Eleventh Circuit found the agreement unenforceable because it violates Title VII’s fee shifting when plaintiff prevails. (Perez v. Globe Airport Security Servs. Inc.)
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RACIAL SLURS BASED ON WRONG RACE A prison employee of Filipino and Native American descent was subjected to anti-white slurs by an African-American employee. The employer argued that since discriminatory comments were not directed to Filipinos or Native Americans, the claim must fail. The Court disagreed, finding that the comments were directed at the employee. Further, the Court found that since employees in a prison need to trust their co-workers, the racial slurs interfered with the employee’s work. (Bell v. Maryland D.Md)
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NO BEARD POLICY VIOLATES TITLE VII The EEOC sued Federal Express alleging that a no beard policy discriminated against employees with a sincerely held religious conviction that prevents shaving. The matter was settled in a consent decree which requires exceptions to the policy for religious reasons and training. (EEOC v. Federal Express Corp.)
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EMPLOYEE WHO REFUSES TO COMPLY WITH AFFIRMATIVE ACTION PLAN PROTECTED BY TITLE VII An employee who in good faith refuses to comply with an affirmative action plan may not be retaliated against according to the Fourth Circuit. (Dea v. Washington Suburban Sanitary Commission)
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DRIVING TO WORK IS NOT MAJOR LIFE ACTIVITY An employee could not drive until seizure-free for six months. The employee requested working at home two days and a flexible schedule to accommodate her transportation needs. The Eleventh Circuit rules that an employee’s inability to drive is not a substantial limitation of a major life activity for purposes of the ADA. (Chenoweth v. Hillsborough Cty)
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$6.24 MILLION AGE DISCRIMINATION VERDICT OVERTURNED The First Circuit found that an employer fired two employees in “an insensitive overreaction to a series of minor transgressions.” However, the entire age discrimination claim was that plaintiffs were over 40, fired and replaced with younger employees, who were also over 40. Finding no discriminatory intent, even though the jury was justified in disbelieving defendant’s stated reasons for firing plaintiffs, the First Circuit was compelled to overturn the large jury verdict. (Baralt v. Nationwide Mutual Ins. Co.)
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UNION LIABILITY UNDER TITLE VII BASED ON NUMBER OF MEMBERS A union member sued a Steelworkers’ Local and his employer for a racially hostile work environment. The Local argued that it only had four employees, and therefore was not liable for compensatory damages. The Eighth Circuit found that the Local, which had over 1,500 members, should be treated like employers with 1,500 employees. (Dowd v. United Steelworkers of America, Local No. 286)
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FEDERAL COURT FINDS DISCRIMINATION BECAUSE PLAN PROVIDES FOR NO CONTRACEPTIVE COVERAGE Health plans may not discriminate on the basis of sex. The District Court decided that “the law is no longer blind to the fact that only women can get pregnant, bear children or use prescription contraception. (Erickson v. Bartell Drug Co. W.D. Wash.)
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REQUEST FOR UNLIMITED SICK DAYS HELD NOT TO BE REASONABLE An employee with AIDS-related medical problems requested unlimited sick days as an accommodation under the ADA. After being subjected to progressive discipline for attendance problems, he filed a charge with the EEOC. The EEOC brought an action against his employer under the ADA. The Seventh Circuit ruled 7-4 that the employee’s regular attendance was an essential job function and the request was unreasonable. (EEOC v. Yellow Freight System)
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MAINE REQUIRES HEALTH INSURANCE COVERAGE FOR DOMESTIC PARTNERS In January 2002, health insurers in Maine will be required to treat domestic partners as spouses when extending health insurance coverage.
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SEXUAL HARASSMENT MUST BE IN EMPLOYEE’S ORBIT A jury found that a Deputy Superintendent for the New York City subway suffered sexual harassment upon hearing that two female cleaners were being harassed, including unwelcome touching and propositions. After the women complained, the Deputy Superintendent experienced a major depressive disorder when her attempt to help the women failed. The Second Circuit reversed the jury verdict finding that the alleged harassment was out of plaintiff’s sight and “regular orbit;” there was no evidence that her working environment was hostile or that the harassment of others adversely affected the terms and conditions of her own employment. Leibovitz v. New York City Transit Auth.
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FMLA’S INTERMITTENT LEAVE PROVISION IS NOT FOR REHABILITATION A business manager for a college suffered a head injury. Following the accident, she was limited to routine tasks and could not perform the essential functions of her job. She requested to work on a reduced schedule, gradually working up to full time. The Eighth Circuit found that the college had no obligation under the FMLA “to be directly involved in an employee’s rehabilitation…while the employee is at his or her job, the employee must be able to perform the essential functions of the job.” Hatchett v. Philander Smith College
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THE ADA DOES NOT REQUIRE PREFERENTIAL TREATMENT A door-to-door salesperson suffered injuries which prevented walking and stair climbing, which was required for the job. She requested training so she could be promoted to a non-walking management position. The Seventh Circuit found that the employer did not have to offer such training, which was not offered to other employees. The Court found that such special training would be a burden not required by the ADA. Williams v. United Ins. Co. of Am.
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ADA REQUIRES EMPLOYEES TO ANSWER REASONABLE REQUESTS ABOUT MEDICAL CONDITIONS An employee who repeatedly failed to respond to reasonable requests for information about his doctor’s directive that he not be exposed to dust, chemicals or other irritants could not proceed with his ADA claim says the Fourth Circuit. (Haulbrook v. Michelin North America Inc.)
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MALE EMPLOYEE WAS NOT CONSTRUCTIVELY DISCHARGED A male operations manager complained about sexist remarks and implied requests for sex from his female boss after he quit. The Seventh Circuit found that a reasonable person would not have been compelled to quit and that the boss’ statements were not sufficiently severe or pervasive to state a claim. The Court found no “objectively intolerable working environment” and that the comments were not “substantially distressing.” (Wolf v. Northwest Indiana Symphony Society)
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WHO IS THE HARASSER? A woman complained that her boss sexually harassed her. The male boss said she was a poor performer who had sexually propositioned him. During an investigation, the boss failed to produce proper documentation of performance problems. He was subsequently fired and claimed sex and age discrimination. The Court dismissed the complaint finding that the boss failed to take disciplinary action against the woman or otherwise make a sexual harassment complaint pursuant to the Company’s policy. The Court found that the investigation was comprehensive and not a pretext for sex or age discrimination. (Needham v. BI Inc. N.D.Ill)
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THE CIVIL RIGHTS TAX RELIEF ACT OF 2001 INTRODUCED IN CONGRESS If passed, this law would make settlements and judgments of discrimination cases non-taxable. (S.917 and H.840)
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EMPLOYEE’S RESIGNATION PREVENTS FAILURE TO ACCOMMODATE CLAIM A deaf employee quit because she believed her employer was playing a “cat and mouse” game when trying to get an interpreter. The Court found that the employer was not “required to move with maximum speed” and that the resignation ended the interactive process required for reasonably accommodating her disability. (Rennie v. United Parcel Service D. Mass)
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NO CAP ON FRONT PAY The United States Supreme Court unanimously determined on June 4, 2001 that statutory caps on damages do not apply to front pay. Pollard v. E.I. du Pont de Nemours & Co.
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THE ADEA AND FOREIGN NATIONALS Foreign nationals applying abroad for US jobs are not protected by the Age Discrimination in Employment Act says the Fourth Circuit. (Reyes-Gaona v. North Carolina Growers Assoc.)
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DEMANDS FOR SEX AND RACIAL SLURS An elderly patient declared incompetent by a state court subjected a nurse to racial slurs and demands for sex. When the nurse complained, the employer asked her to consider the source and not take it personally. The Fifth Circuit found that the conduct was not so severe or pervasive as to interfere with the nurse’s work. Cain v. Blackwell.
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ADA REQUIRES INDIVIDUALIZED ASSESSMENT The United States Supreme Court determined that the ADA requires that a disabled golfer who suffers from a degenerative circulatory disorder may use a golf cart. The court found that the “refusal to conduct an individualized inquiry in deciding whether to accommodate this golfer’s disability ran counter to the clear language and purpose of the ADA.” PGA Tour, Inc. v. Martin
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AFFIRMATIVE DEFENSE REJECTED An employer fails to establish an affirmative defense to a sexually hostile work environment claim where it can not prove that it maintained or disseminated a sexual harassment policy. (Frederick v Sprint/United Management 11th Circuit.) .
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WHO IS THE EMPLOYER ? The Seventh Circuit used an economic realities/degree of control test to find that a company could be deemed a joint employer under Title VII and the ADEA. The fact that a company provided health insurance and authorized pay raises, in light of a lost personnel file and notwithstanding the fact that another entity issued paychecks and a w-2, entitled plaintiff to a jury trial on the issue of who is the employer, Heinemeier v. Chemetco, Inc.
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CHRONIC DEPRESSION NOT A DISABILITY The Eighth Circuit holds that since chronic depression did not substantially limit social interaction or working, it was not a protected disability under the ADA. It didn’t matter that plaintiff was limited in comparison to others. She had managed for 30 years to deal with her illness and was not substantially limited in major life activities. The court also found that an inability to perform one job is not enough to evidence a limitation of a major life activity – working; a plaintiff must show an impairment which causes a significant reduction in meaningful employment opportunities. Cooper v. Olin Corp.
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LESSON TO BE LEARNED FROM THE $2.6 MILLION TWA SEXUAL HARASSMENT CLASS ACTION SETTLEMENT ANNOUNCED MAY 24 BY THE EEOC
Back to top CBA BARS TITLE VII LAWSUIT A collective bargaining agreement that clearly provides for Title VII claims to be arbitrated precludes a private suit. Even if the alleged Title VII victim has no right to grieve or arbitrate, and the union fails to pursue the matter, the union employee is not entitled to her day in court. (Safrit v. Cone Mills Corp, 4th Circuit.)
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PICKING COMPARATORS A prison guard alleged discrimination after being fired for having sex with an inmate. He could not claim disparate treatment with respect to only one female guard not fired after kissing an inmate, when two other female guards lost their jobs over their inmate relationships. When using comparators, the 10th Circuit frowns on choosing some while ignoring others. English v. Colorado Department of Corrections.
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EXCESSIVE FORCE AGAINST AFRICAN AMERICAN A white deputy sheriff alleged that he was fired because of his race. The Sheriff said he was fired for using excessive force when arresting an African American. The deputy sheriff claimed to be the victim of race-related politics. A jury found unlawful discrimination. The Fifth Circuit reversed finding that there was no evidence that the deputy sheriff’s race – as opposed to the alleged criminal’s race – was a motivating factor. McKenzie v. Lee.
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100% HEALED Employers that will not reinstate workers unless they are 100% healed do not necessarily violate the ADA. There still must be a finding that the employee was “disabled” or “regarded as disabled” as defined by the ADA, says the Sixth Circuit. Henderson v. Ardco Inc.
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INDIVIDUAL ASSESSMENTS The EEOC sued Northwest Airlines for disability discrimination because of an alleged policy that excludes employees who are insulin-dependent or on anti-seizure medications from certain positions without individual assessments to assess essential duties, direct threats or possible accommodations.
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MEDICAL EXAMS An employer’s request for an appropriately-tailored medical exam evidences that an employer had doubts about an employee’s ability to perform a particular job. Such doubts do not support a perceived disability claim says the Third Circuit. Tice v. Centre Area Transportation Authority
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INDIVIDUAL LIABILITY UNDER §1983 Public officials can be personally liable for intentional sexual harassment. The Eighth Circuit finds that a supervisor’s reporting to a subordinate’s hotel room in boxer shorts, requests for sexual favors and unwelcome touching justifies a $70,000 verdict against the supervisor. Moring v. Arkansas Dep’t of Correction
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POLICE OFFICER’S PIN A police officer claimed that a no pin policy violated Title VII and his First Amendment Right to wear a cross on his uniform. The Fifth Circuit disagreed and said the police department could ban pins. Daniels v. City of Arlington
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DISABILITY HARASSMENT VIOLATES ADA The Fifth Circuit is the first circuit to hold that harassment based on a disability is an ADA violation. Flowers v. Southern Reg’l Physician Servs., Inc.
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GAY RELATIONSHIPS v. RELIGIOUS BELIEFS An employee assistance counselor, whose religion frowns upon gay relationships sues employer for failure to accommodate religious beliefs because it would not excuse her from counseling about gay relationships. The employer decided that the accommodation was not reasonable because it would create an uneven workload. The jury awarded over $2 million. The Fifth Circuit reversed finding the accommodation would cause an undue hardship. Bruff v. North Miss. Health Services
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FLIGHT ATTENDANT MISSES FLIGHT United Airlines fired a flight attendant because he “deviated without authority” from his flight schedule. The employee claimed race and age discrimination. The District Court found that the employee did not even have enough evidence to warrant a trial. The Seventh Circuit found that a triable issue existed and reversed the District Court decision because of United’s shifting explanation for the firing and confusion over the meaning of “deviated without authority.” Gordon v. United Airlines
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A NOOSE IS NOT ENOUGH Displaying a noose and racist comments did not create a racially hostile work environment because they were isolated, sporadic and did not alter employment conditions; the incidents were not severe or pervasive enough to establish a discriminatory hostile work environment. McCoy v. City of New York
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NEGATIVE EVALUATIONS NOT ADVERSE EMPLOYMENT ACTION A black police officer claimed discrimination after receiving two negative “counseling memos.” One memo was removed and the other memo would not impact the employees’ overall employment rating or pay increase. The Court wrote that the “loss of prestige or self-esteem felt by an employee who received what he believes to be unwarranted job criticism or performance review will rarely-without more-establish the adverse action necessary to pursue a claim under Title VII’s anti-discrimination clause.” Davis Lake Park, Fla.
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ESSENTIAL JOB DUTIES NOT LINKED TO TIME The Seventh Circuit finds that a pharmacy technician with limited mobility was not a “qualified individual with a disability” because he could not deliver and restock. The fact that these duties normally took less than 45 minutes a day is irrelevant. The fact that other workers could cover does not render the work non-essential. A restructuring of jobs is not required by the ADA. Basith v Cook County
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UNION STEWARDS ARE UNION EMPLOYEES A former union officer sued a UFCW Local for sexual harassment. The Union stated that it did not have the 15 jurisdictionally-required employees to be covered by Title VII, arguing that the stewards were volunteers and received income from their regular employer, not the Union. The Eighth Circuit found the stewards to be employees under Title VII because the Union controlled their termination and hiring, controlled the manner and means by which they performed their duties and because they did receive some benefits from the union. Daggitt v. United Food and Commercial Workers’ Int’l Union Local 304A
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ARBITRATION AGREEMENT UNENFORCEABLE A Federal Court found that power imbalances, potential bias and complexity in an arbitration agreement made the agreement unconscionable. Geiger v. Ryan’s Family Steak Houses
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DISCRIMINATION BASED ON EFFEMINACY IS TITLE VII VIOLATIONDistrict Court finds that offensive locker room banter about plaintiff’s effeminate appearance states valid Title VII claim. Jones v Pacific Rail Services
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US SUPREME COURT ALLOWS ENFORCEMENT OF ARBITRATION PROVISION
On March 21st, the US Supreme Court reversed the Ninth Circuit and found that the Federal Arbitration Act does not exclude employees, except for transportation workers. Circuit City Stores v. Adams
Back to top RELEASE SIGNED BY HR DIRECTOR DOESN’T RELEASE CLAIM FOR INDEMNIFICATION An HR Director was sued individually for sexual harassment. Her employment terminated and a release was signed. Her employer then settled the sexual harassment suit, which was filed against the employer and the HR Director. An Appeals Court in Tennessee found that the release did not extinguish the HR Director’s claim for indemnification to recover her attorneys’ fees since the sexual harassment suit was settled after the release was signed. The Court found that the release did not extinguish future claims, and the claim for indemnification did not arise until the case was settled. Sherman v American Water Heater Co.
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CHURCH OF CHRIST MEMBERS ONLY A jury awarded $170,000 to a nursing administrator who was barred from applying to a position at a nursing home because she was not a member of the Church of Christ. The Sixth Circuit reversed finding that the employee did not meet State certification requirements for the position. She lacked management experience required by the State. Roh v Lakeshore Estates Inc.
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VULGAR FUN
A jury awarded a female attorney $80,000 for a sexually hostile work environment at a law firm. The District Court judge quashed the award, finding that sexual banter was in a humorous vein and that the associate remained friends with the accused male associates. The Court held that sexual talk and vulgar terms was not hostile or abusive to a severe or extreme degree. Fitzgerald v Ford Marrin Esposito Witmeyer & Glesser
Back to top US SUPREME COURT ALLOWS ENFORCEMENT OF ARBITRATION PROVISION On March 21st, the US Supreme Court reversed the Ninth Circuit and found that the Federal Arbitration Act does not exclude employees, except for transportation workers. Circuit City Stores v. Adams
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FEMALE WRESTLER SURVIVES SUMMARY JUDGMENT
Allegations of men barging into the women’s locker room, simulated sex acts with a microphone and breast groping gives plaintiff the right to a jury trial on her sexually hostile environment claim. However, rebuffed requests for sexual favors did not state a quid pro quo claim when plaintiff’s response to the requests was not used as the basis for a decision affecting terms or conditions of employment. Bass v World Wrestling Federation Entertainment Inc.
Back to top MANAGER LANDS IN JAIL FOR ONE YEAR The Catering Director of Le Bar Bat in New York City has been convicted of obstruction of justice and sentenced to one year in prison. When the EEOC investigated a sexual harassment complaint, the Catering Director targeted the Complainants with fliers accusing them of prostitution, child molestation and drug dealing. He then asked his co-workers to tell EEOC investigators that he had nothing to do with the fliers. U.S. v. Patrick Kelly, New York Law Journal, February 8, 2001, page 39, Col. 2.
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SETTLING AGE DISCRIMINATION CASES
The EEOC has issued final rules that relate to releases and the ADEA. Releases that require employees to return money before filing an age discrimination claim no longer bar an ADEA claim if the money is not “tendered back.” Seewww.eeoc.gov.
Back to top ARBITRATING SEXUAL HARASSMENT CLAIMS Even if an arbitrator misapplies the law, courts are very reluctant to overturn arbitrators’ awards. An arbitrator in Pennsylvania thought that a pervasive hostile work environment required daily offensive behavior. The fact that a woman was asked for a one night stand, subjected to multiple vulgar and sexually suggestive comments about her body, asked about sexual relations with her fiancé and grabbed by her supervisor who then peered down her blouse did not create a pervasive sexually hostile work environment in the mind of the arbitrator. Because there was no manifest disregard for the law, a federal district court judge would not overrule the arbitrator. See Smith v. PSI Services Two.
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HEALTH PLANS AND PRESCRIPTION CONTRACEPTIVES
The EEOC has ruled that where a health plan covers vasectomies and tubal ligations, the plan must cover prescription contraceptives or run afoul of the Pregnancy Discrimination Act and Title VII. See www.eeoc.gov.
Back to top REASONABLE RESPONSE TO HARASSMENT CLAIMS The 10th Circuit found that jokes and nooses at work could be found to be race harassment. However, Delta Airlines could not be held liable because it immediately investigated and took corrective action. Since the harassment was not occurring “at the behest of Delta” and because Delta acted reasonably, Delta was not held liable. Hollins v Delta Airlines
Back to top TOO SCARED TO COMPLAIN The Second Circuit has found that being “too scared to complain” does not excuse an employee’s failure to complain under an anti-harassment policy. Since the court found that the plaintiff acted unreasonably and that no tangible employment action was taken, the hostile environment claim was dismissed. Leopold v Baccarat Inc.
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