October 20, 2014

Employment Discrimination Suit Denied Because of Procedural Time-Bar

Earlier this month, the First Circuit ruled on an employment discrimination case in favor of the defendants in Acevedo-Perez v. United States Department of Homeland Security, et al. Apparently, an employee of the United States Customs and Immigration Service (USCIS) filed a suit for employment discrimination, claiming he was discriminated against based on his age.

grandpa-558324-m.jpgThe employee alleged that in 2005 the agent in charge of his office asked for volunteers to transfer offices. The employee was listed as one of the four officers of seniority and was reassigned to headquarters. He had to delay his transfer because of a family issue. His third attempt to delay his transfer was denied, and he subsequently retired. He then filed a complaint in 2006, alleging that he was discriminated against because of his age, and that he was forced to retire. This claim was denied in 2009. He received a notice to appeal in July 2009, and he commenced his action in September 2009.

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October 13, 2014

EEOC Equal-Pay Case Dismissed for Lack of Specific Information Regarding Pay Discrepancies

The federal government's Equal Employment Opportunity Commission plays a large role in keeping the workplace fair for all workers. In some cases, the EEOC will pick up cases that involve large groups of employees and litigate them on behalf of the aggrieved employees. While the EEOC has a good success rate, it certainly isn't perfect.

chairs-and-coffee-732128-m.jpgIn a recent case involving the EEOC, the Commission's case was dismissed because it failed to provide specific information about the jobs of male and female employees when it was making a wage-discrimination claim.

EEOC v. Port Authority of N.Y. and N.J.

In the recent case of EEOC v. Port Authority of N.Y. and N.J., the EEOC claimed that the Port Authority of New York and New Jersey was paying male and female employees differently, although the two groups performed similar work.

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October 6, 2014

Employee Awarded Large Settlement in FMLA Case

The Seventh Circuit recently decided an appeal in Cuff v. Trans States Holdings, Inc., et al. and affirmed a lower court's decision to award an employee-plaintiff a large settlement in a Family and Medical Leave Act (FMLA) case. The Court found that the employee worked jointly for two companies that were owned by one supplier, and it held that the employer was in fact mandated to follow federal law regarding FMLA and should not have terminated the employee for taking leave.

milan-office-1445888-m.jpgThe Facts of the Case

An employee was terminated from his job after he took a leave under FMLA after the request was denied by his employer. The employer contended that it was not considered an employer subject to the regulations because they did not have the requisite number of employees. The company said that it only had 33 employees. The plaintiff argued that he worked for both companies jointly, and the other company had 343 employees, therefore qualifying the employer under FMLA.

The Court found that under the regulations by the Department of Labor, an employee will be eligible for FMLA if he or she is employed by more than one agency that has 50 or more workers total, and in this instance the employer was qualified as such under the law.

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September 26, 2014

Supreme Court of Washington Rules in Favor of College in Age Discrimination Suit

Last week, the Supreme Court of Washington State ruled in favor of Clark College in an age discrimination suit brought against the college by a professor employed by the college. The Court ruled that the professor did not meet the requirements necessary to establish discrimination.

doodled-desks-2-1193228-m.jpgThe Background of the Case

In 1994, the plaintiff started teaching English as an adjunct professor at the college. After about nine years, she applied for a tenured position. In addition to the plaintiff's application, Clark College received 151 other applications, and it subsequently screened 13 of the candidates during a teaching demonstration. They then recommended the four screened individuals to the president and vice-president of the department.

The plaintiff was 55 at the time of the interview and was one of the four candidates chosen to be recommended to the president. The college did not hire the plaintiff and instead hired two other individuals who were younger than 40 years old.

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September 19, 2014

Sixth Circuit Rules against Plaintiff in Employment Discrimination Suit

Late last week, the Sixth Circuit decided an employment discrimination lawsuit in favor of the employer in Loyd v. Saint Joseph Mercy Oakland et al.. Apparently, a 52-year-old African-American woman was terminated from her 25-year position as a security guard at a Michigan hospital. The woman first brought charges with her union and then filed charges with the Equal Employment Opportunity Commission (EEOC). The employee alleged that she was discriminated against and terminated because of her sex, race, and age. The hospital argued that she was not fired for any of those reasons, but rather because of a series of violations of the hospital's policies and practices.

guard-1063331-m.jpgBackground

The plaintiff, Anita Loyd, was a security guard for 25 years with the hospital. During her tenure, she was disciplined several times for various infractions. One of these infractions included a 2001 incident when she failed to help restrain a patient. She was subsequently written up.

In 2011, Ms. Loyd was called to a room where a psychiatric patient was residing. The patient was very agitated and was acting in a violent manner. The hospital contends that Ms. Loyd was asked to help restrain the patient to ensure that no one was injured, but Ms. Loyd instead began asking the patient questions. However, Ms. Loyd argues that she did leave the room to inquire about the patient but that she also helped restrain the patient.

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September 12, 2014

Art Institute Moves to Dismiss Discrimination Case Based on Their Anti-Discrimination Policy

The Education Management Corporation (EDMC) has recently motioned the court to dismiss a suit against the Art Institute of Pittsburgh, which it manages. According to a report by one news source, the Art Institute of Pittsburgh was sued by two former employees who alleged that they were being discriminated against because of their race and age.

ring-binder-2-1286890-m.jpgBackground

In April of 2014, two former admissions office employees sued EDMC, making allegations that the Institute engaged in a series of illegal employment practices. The two individuals claimed that the Institute terminated individuals and refused to promote others because of their race and age. Furthermore, they alleged that the Institute participated in retaliation in regards to a disput- resolution policy.

The attorney for the Institute attempted to dismiss the suit by arguing that its dispute-resolution policy is the only way to resolve any workplace issues. However, the attorney for the plaintiffs in this case countered by explaining that, although the company has a dispute-resolution policy, that policy does not trump the Supreme Court, nor does it trump statutory law, nor is it appropriate public policy.

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September 5, 2014

Sixth Circuit Reverses Lower Court Decision on FMLA Issue

office-chair-1431952-m.jpgThe Sixth Circuit Court of Appeals found that a woman who claimed a Family and Medical Leave Act (FMLA) violation was entitled to a judgment in her favor. During the trial in this case, the jury awarded the woman $173,000, but that amount was reduced by the judge to $90,788. This decision was reversed by the Sixth Circuit, and she was awarded $173,000.

Wallace v. Fedex Corp.

Wallace v. Fedex Corp. is a classic example of the impact that the violation of an employee's rights can have on an organization. The Sixth Circuit explained that, although FedEx has a right to ask an employee to provide a medical certification in relation to an FMLA request, it must also explain the consequences to an employee if he or she fails to provide such documentation. In this instance, FedEx failed to inform the plaintiff about what would happen if she did not provide a certification.

Ms. Wallace was employed by FedEx as a paralegal for over two decades. Unfortunately, she became ill, which resulted in a series of medical difficulties that affected her ability to attend work as she was regularly scheduled. After discussing her issues with her employer, FedEx finally agreed to provide Ms. Wallace with the documentation necessary to proceed with leave under the FMLA.

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August 22, 2014

EEOC Updates Pregnancy Discrimination Guidelines

The Federal Government's Equal Employment Opportunity Commission recently updated the enforcement guidelines regarding discrimination against pregnant women in the workplace. The revision of these guidelines comes over 30 years after pregnancy discrimination was first banned in the workplace, and is the first revision since then.

maternity-portrait-2-1413394-m.jpgThe 1983 Pregnancy Discrimination Act is part of the larger American with Disabilities Act. The Act makes it illegal for employers to make hiring, firing, promotion, and other employment-related decisions based on an employee's status as a pregnant woman or in relation to any pregnancy-related illnesses.

While pregnancy itself is not listed as a "disability" under the Act, pregnancy-related illnesses can qualify. This means that if a pregnancy-related illness rises to the level of a "disability" under the terms of the Act, an employer may need to make reasonable accommodations for the employee, including:

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August 15, 2014

Pregnant Police Officer Files Suit After Her Department Refused to Accommodate Her

Earlier this year, a pregnant woman and police officer in the City of Florence filed suit against her employer after they refused to accommodate her request for a job more fitting for a pregnant woman.

police-car-126271-m.jpgAccording to a report by one local news source, the police officer has a master's degree in Criminal Justice and has been with the force for a number of years. In fact, this was not her first pregnancy while on the police force. Back in 2012, she was pregnant with her first child, and the police department accommodated her request to transfer to a desk job once it became physically impossible for her to go out on her regular shifts.

Evidently, the police department's policy has always been that only those injured while on the job are eligible for a temporary desk job. However, they clearly made an exception for this particular officer's first pregnancy. At some point after she gave birth to her first child, the department sent out a memo telling management not to approve desk duty for anyone who was not injured while on the job.

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August 8, 2014

Seventh Circuit Overturns Lower Court Ruling on Indiana Title VII Prison Case

The Seventh Circuit Court of Appeals recently found that a lower court erroneously ruled against an Indiana prison employee who had brought Title VII discrimination claims against her employer.

prison-1431136-m.jpgThe details of Orton-Bell v. Indiana seem like they belong in a movie or television show. Connie Orton-Bell worked as a substance abuse counselor in Pendleton Correctional Facility, one of Indiana's maximum security prisons, from 2007 until April 2010. During her time in the position, she claimed that numerous sexually inappropriate behaviors took place in her work environment. For instance, an investigation into security breaches uncovered that night shift employees were having sex on Orton-Bell's desk. The investigator's only reaction was that Orton-Bell should wipe her desk off every morning.

Orton-Bell also claimed to be the personal recipient of many sexual remarks by her superior, Superintendent Brett Mize. Mize allegedly instructed Orton-Bell to never wear jeans to work because "her ass looked so good, she would cause a riot." Such comments were allegedly common from Mize, who was eventually terminated for reasons unknown prior to the events that led to the lawsuit. However, Ortin-Bell claimed that these comments were common among all of the male employees, and that female employees were "bombarded."

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August 1, 2014

NLRB Finds That McDonalds Is a Joint Employer and Can Be Named in Worker Complaints

Recently, across the United States, fast food workers who receive the minimum wage have vowed to engage in civil disobedience in order to convince their corporate employers to raise their hourly wage to $15, or a living wage. However, one problem that faced them was corporations like McDonalds insisting that it was the franchise owners, the people who owned and controlled individual stores, who set the wage, not the corporations. If that were truly the case, workers who wanted to organize a union would face the extremely difficult task of organizing each store separately.

burger-1119511-m.jpgFortunately for the workers, the National Labor Relations Board (NLRB) ruled that McDonalds could be considered a joint employer in any complaints against the individual franchises. Therefore, the McDonalds corporation could be exposed to liability for actions taken by the franchises.

Across the country, including in Indiana and Kentucky, the majority of McDonalds' 14,000 stores are owned and operated by franchisees. This is also true of other fast food chains like Taco Bell, Pizza Hut, and Burger King. The separation has allowed corporate leaders to argue that disgruntled workers should take their complaints to the individual franchise owners. In fact, individual franchise owners have little control over the way they operate the business, due to the strict terms the parent corporation imposes, from the type of menus to available supplies, appropriate uniforms, and training materials.

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July 25, 2014

Seventh Circuit Finds That Employer Provided Reasonable Accommodation to Legally Blind Employee

Recently, the Seventh Circuit determined that there was no disability discrimination in a case where a legally blind employee was shifted to a different position due to his failure to perform certain work functions.

ice-cream-845894-m.jpgIn Bunn v. Khoury Enterprises, Inc., Joshua Bunn worked as an hourly employee for Dairy Queen, owned and operated by Khoury Enterprises. Bunn was legally blind, with no vision in one eye and reduced vision in the other. Hired in September 2010, Bunn and other employees of his rank were required to rotate between the duty stations, including preparing ice cream and other food, working at the cash register, and keeping the dining area in good order. Bunn was first assigned to the station involved with preparing ice cream, but he was unable to perform certain duties without accommodation, due to the fact that the ingredient labels were too small, and monitors displaying the orders were placed too high for Bunn to see.

Finally, Bunn's store manager trained him for the "Expo" station, where employees were responsible for delivering food to customers eating at the restaurant and for keeping the dining area clean. Bunn performed those duties without need for accommodation, so his manager arranged for him to be there full-time, as opposed to his coworkers, who continued to rotate. Otherwise, Bunn maintained the same hours as his coworkers, up until the point where he got suspended for 10 days due to ignoring the night manager's request to put his cell phone away. Once Bunn returned to work, his hours were decreased reportedly due to the fact that business slowed down during the cold-weather months. Finally, Bunn submitted his resignation in February 2011, claiming that he could find more hours with another employer. He then filed a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) and eventually a lawsuit against Khoury Enterprises. The district court ruled in Khoury Enterprises' favor, and Bunn appealed to the Seventh Circuit.

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July 16, 2014

United States Supreme Court Agrees to Review Whether Pregnancy Discrimination Act Requires ADA-Like Accommodations For Pregnant Employees

The United States Supreme Court agreed to consider whether the federal Pregnancy Discrimination Act required employers to accommodate the work restrictions given to pregnant employees in the same way they do for non-pregnant employees with injuries and other temporary impairments.

maternity-photos-1252249-m.jpgThe petitioner, Peggy Young, was a part-time delivery driver for United Parcel Service, Inc. (UPS). During her pregnancy, her physician provided her with a lifting restriction of no more than 20 pounds, which her employer refused to accommodate, even though UPS offered light duty to workers who had been injured during the course of their duties. Young eventually sued, claiming a violation of the Pregnancy Discrimination Act of 1978. The Fourth Circuit ruled that the Act did not require UPS to accommodate a worker's pregnancy, stating that the Act's "plain statutory text" as well as its statutory purpose did not support Young's interpretation. The Court found that UPS's "pregnancy-blind" accommodation was sufficient and did not constitute disparate treatment.

However, the Fourth Circuit's decision conflicts with a Sixth Circuit decision dating back to 1996. In Ensley-Gaines v. Runyon, the Sixth Circuit found that not only did the Pregnancy Discrimination Act recognize Title VII's ban on sexual discrimination, but also provided added protection to pregnant women by requiring employers to provide them with the same accommodation as non-pregnant employees who were "similar" in their ability to work. Furthermore, the Sixth Circuit had found that a pregnant woman did not need to make a showing that a worker who received better treatment was similarly situated in every way. The pregnant employee just needed to show that a non-pregnant employee with a similar ability (or inability) to work was receiving more favorable treatment.

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July 9, 2014

United States Supreme Court Rules Against Union Agency Fees in Harris v. Quinn

In a ruling that could endanger long-standing union practices, the United States Supreme Court determined that public employees cannot be required to join unions or pay dues in Harris v. Quinn.

u-s--supreme-court-roof-and-columns-658253-m.jpgThe case involved home health care workers who provided services to Medicaid patients under the Illinois Home Services Program. The home health care workers were represented as a whole by the SEIU Healthcare Illinois & Indiana, which entered collective bargaining agreements with the State that contained an agency fee provision. The agency fee provision required that all bargaining unit members that did not wish to join the union pay the union a fee for the cost of certain activities, such as collective bargaining and related activities. A group of home health care workers brought a lawsuit against the SEIU, claiming that the agency fee provision violated their First Amendment rights. While the district court dismissed their case, the Seventh Circuit ended up affirming parts of it, leading to a petition of the U.S. Supreme Court.

In a 5 to 4 decision, the Supreme Court found that the First Amendment prohibited the payment of agency fees by non-union members. The majority consisted of Justice Alito (who wrote the decision), Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Kennedy. They found that long-standing union concerns about "free riders" were not sufficient to overcome First Amendment issues. In particular, Justice Alito argued that except under rare circumstances, no person should be allowed to subsidize another person's speech if he or she does not wish to do so. Although the majority did not overturn the 1977 Supreme Court decision Abood v. Detroit Board of Education, which permitted public employees to pay the costs of collective bargaining, the justices left the case on shaky ground.

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July 2, 2014

United States Supreme Court Supports Religious Freedom for Corporations in Burwell v. Hobby Lobby

The United States Supreme Court recently determined that certain types of corporations could exercise religious beliefs at the expense of their employees in the long-awaited decision for Burwell v. Hobby Lobby.

u-s--supreme-court-1-1038827-m.jpgHobby Lobby concerned whether a corporation run by a family could avoid following the birth control mandate of the Affordable Care Act on the basis of the family's religious beliefs. The birth control mandate requires all but religious entities to provide health insurance that covers the cost of all forms of birth control for their employees. The Green family, which founded the Hobby Lobby arts-and-crafts chain, claimed that the mandate violated the Religious Freedom Restoration Act of 1990. The Religious Freedom Restoration Act was passed in order to ensure that any law that burdened an individual's religious liberty was given strict scrutiny. If the law did not meet the strict scrutiny requirement, it was nullified. The issue in Hobby Lobby was whether such a law also applied to a "closed corporation," or a corporation in the hands of a few individuals, as opposed to ones whose shares could be publicly owned. In a 5 to 4 decision, the Supreme Court found that it did.

The majority consisted of Justice Alito (who wrote the decision), Justice Scalia, Justice Thomas, Chief Justice Roberts, and Justice Kennedy (concurring). The majority based its decision on the fact that the mandate violated the Religious Freedom Restoration Act, and did not address whether it violated the First Amendment of the Constitution. The majority claimed that their decision affected closely held corporations only, stating that they fall within the definition of "people" designated by Congress. Also, in a questionable addition, the majority claimed that the Hobby Lobby decision applied to the contraceptives mandate only - not to vaccines or blood transfusions. The decision should also not be considered a "shield" for illegal discrimination.

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