September 2011 Archives

September 28, 2011

Age Discrimination Complaint Filed and Settled by Ex-dean of Indiana University Southeast

On April 30, 2010, Annette Wyandotte, former dean of the School of the Arts and Letters and associate professor of English at Indiana University Southeast, filed a complaint with the Indiana office of the Equal Employment Opportunity Commission (EEOC). The charges were age discrimination and sex discrimination. Ms. Wyandotte was being forced to retire from her dean position on June 30, 2010.

Indiana University Southeast has a policy that requires individuals at an executive level to retire at the end of the academic year when they reach the age of 65. This may seem illegal based on the Age Discrimination in Employment Act of 1967, which protects employees over 40 from being forced out of their jobs. But section C12 of the Act states, "Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000." This section allows employers to require individuals in higher positions to retire at a certain age to promote turnover at upper executive levels.

Ms. Wyandotte, who is currently 67, was allowed to finish out her three-year term as dean. When her term was up, she was not recommended for another term as dean, despite a 33 to 1 vote by the department to reappoint her for another three years. The vice chancellor for academic affairs said she was denied another term based on the university policy. In addition to the age discrimination claim filed with the EEOC, Ms. Wyandotte also claimed sex discrimination because exceptions to this mandatory retirement policy were made for other individuals who were male.

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September 20, 2011

Bullying in Places of Employment Prompts New Legislation

Thumbnail image for Thumbnail image for 1000622_worried_man_against_white_background.jpgAdolescent bullying is a hot topic right now, and includes face-to-face interactions as well as online activity. Unfortunately for some, the bullying doesn't end in their teenage years. Recent polls have shown that over 30 percent of working adults feel they have been bullied at work. No one knows for sure why people become bullies. Perhaps they were bullied themselves or they feel insecure. Some research with brain scans has shown that bullies derive pleasure from seeing someone else being hurt. Workplace bullying can include verbal, physical or emotional abuse by an employer or a co-worker.

While workplace bullying has been occurring for years, it is only recently that action has been taken to begin protecting employees both from their superiors and their co-workers. Several movements, including The Healthy Workplace Campaign, have been created to encourage legislators to take action against workplace bullying. Some forms of bullying are covered by current anti-discrimination laws. If an individual is being bullied based on his race, gender, or religious beliefs, he can take legal action under existing laws. However, if the person being bullied is not in a protected class, or if the bully is in the same protected class as the victim, filing a lawsuit becomes much more difficult.

Since 2003, 21 states have introduced workplace bullying legislation. As of today, none of the bills have become law. This legislation differs from anti-discrimination laws. It would cover all individuals, not just those in a protected class; it would make companies liable for bullying being done by co-workers, not just superiors; and it would pertain to companies of any size.

Companies are concerned that this type of legislation could lead to an enormous number of lawsuits, some legitimate, but others frivolous. Some employees may file claims simply because they were disciplined, or because they were unhappy with a review. The proposed bill in New York hopes to curb some of the unnecessary lawsuits by making employers not liable if the proper bullying prevention and correction techniques are in place. Another way a company can protect itself is to try to identify and turn away potential bullies when interviewing job applicants.

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September 15, 2011

Workplace Rights of Religious Institution Employees to be Determined by Supreme Court

The separation of church and state has always been a tough subject. While the topic does not relate to the majority of us in regards to employment issues, it can affect anyone employed by a church, religious school, or other religious institution.

"Ministerial exception" is a doctrine that was put in place to allow religious institutions the ability to hire individuals that they feel are most qualified to minister to their followers without government intervention. For example, a Lutheran church cannot be sued for discrimination for failing to hire a rabbi for a religious leadership position within the church. However, the subject becomes more unclear when it is applied to other positions within a religious institution.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fourth-grade teacher at the religious school was terminated after several months of not being able to work due to undiagnosed narcolepsy. After she was diagnosed, her doctors cleared her to return to work with the appropriate medication. The school was concerned about her ability to perform her teaching duties and asked her to leave the school voluntarily and waive her disability. She refused, threatening legal action if she was not reinstated, and she was fired.

Ms. Perich, the dismissed teacher, contacted the Equal Employment Opportunity Commission (EEOC) and filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating Ms. Perich was included under the ministerial exception because she taught at a religious school. Ms. Perich and the EEOC appealed, stating that only 45 minutes of her 7-hour days were spent in religious activity; the rest of her work was secular. They won the appeal, and the case is headed to the Supreme Court.

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September 9, 2011

Age Discrimination by Companies, Agencies, and Unions in Hiring and Training

As baby boomers age and the economy struggles to recover, the subject of age discrimination is being discussed more frequently than ever before. Everyone knows if an individual's employment is subject to wrongful termination based solely on age, it would constitute age discrimination. But there are many other situations in which age discrimination can occur.

When an employer is seeking a new employee, it is unlawful for her to directly ask the age of the prospective employee or to ask questions to help her ascertain the interviewee's age. While this is fairly common knowledge, what you may not know is that it is also illegal for an employment agency to use age as a basis for referring potential employees to a company. Some companies try to get around the age discrimination issue by having an employment agency do the screening for them. In a case involving Hollywood TV writers over 40, talent agencies were included as defendants because they were not recommending older writers to networks and studios for sitcoms or dramas. In 2010, the case was settled when the defendants agreed to pay $70 million to thousands of writers whose careers were damaged by this discrimination.

The Age Discrimination in Employment Act of 1967 also pertains to unions. Unions may not discriminate against potential members, nor may they use age as a basis for referring individuals for employment. A union may also be liable if it fails to act on an employer's discrimination against an employee.

An individual can be discriminated against for youth as well. Even though he may be qualified as far as experience and education, a younger applicant may be passed over for a supervisory role because the interviewer incorrectly thinks he will be less authoritative and not respected by older employees. Young female applicants may also be wrongfully denied employment if the prospective employer thinks she will need maternity leave or may decide to quit working after having a child.

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September 2, 2011

Workers Sue City of Louisville in Class Action Suit for Unsafe Work Environment Due to Toxic Mold Exposure

Employees from the metro police department in Louisville, Kentucky have sued the city of Louisville and the Metro Housing Authority in a class-action suit. The suit claims that the plaintiffs were exposed to mold and other contaminants at a toxic level in a government building at 768 Barret Ave. The case was filed Monday in Jefferson Circuit Court. The suit claims that because of gross negligence and fraudulent concealment, up to 1000 past and present employees were exposed, leading to symptoms including congestion, headaches and skin and respiratory issues.

In 2003, the Occupational Safety and Health Administration (OSHA) and an outside consultant found toxic levels of mold in the air. According to the lawsuit, nothing was done to fix the situation, and employees were not informed of the findings. Last year, after some employees' symptoms worsened, OSHA ordered that the ventilation system be cleaned out or replaced, and employees were relocated. Now that the employees are scheduled to return to the building, the plaintiffs are requesting confirmation that the building has been brought up to OSHA standards, that funds be in place for medical testing of employees, and that treatment is provided for any employees that were affected.

Gross negligence occurs when an individual or entity knowingly places a person or group of people in danger. In this case, it is alleged that the city of Louisville and the Metro Housing Authority were aware of the air-quality issue, but did not fix it.

Gross negligence can also be found in car accidents caused by drunk drivers or those distracted by texting. Medical malpractice claims may also include gross negligence if the doctor was under the influence of drugs or alcohol while operating, or an incorrect surgery is performed, such as the unnecessary removal of an organ or limb.

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