October 16, 2013

Department of Labor Extends Federal Wage and Hour Laws to Home Health Care Workers

In a move that will affect home health care workers in Kentucky and the other states, the Department of Labor recently announced the enactment of a new rule that will give them minimum wage and overtime protections.

wheelchair-945156-m.jpgWhile most hourly workers are protected by the Fair Labor Standards Act (FLSA), there are some exceptions, thanks to a "companionship exemption" enacted in 1975. The companionship exemption applies to workers who provided companionship services for individuals who were unable to care for themselves. Since that time, the home health care industry has grown at a fast pace and is expected to grow 70% bigger by 2020, but in the process, home health care workers have woefully low yearly incomes -- the median annual income was just over $20,000 per year in 2010. This is despite the fact that home health care workers may work up to 60 hours per week, including overnight stays.

Now thanks to the rule, which takes effect in January 2015, all home health care workers will need to be paid 1.5 times their hourly rate for every hour they work beyond 40 in a week, or eight in a day. It will be a life changer, given that even with their long hours, many home health care workers must still work one or two other jobs to make ends meet. The move was applauded by President Obama, who claimed that it would rectify an injustice for those who did "heroic, hard work."

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October 9, 2013

National Teamsters Leadership at Odds With Local Branches Over Contract With UPS

National and international unions are composed of countless local branches containing collective bargaining units. Collective bargaining unit formation and procedure are governed by the National Labor Relations Act of 1935 (NLRA). First, employees in a workplace must file a petition with the National Labor Relations Board (NLRB) showing that at least 30% are interested in union representation. This is usually done through the use of authorization cards. Next, if employees meet the threshold and the petition is otherwise deemed valid, an election for union representation is held. While an employer can challenge the initial petition, he or she cannot legally interfere with an election. Third, if the employees vote to unionize, and the election is upheld, the unit of employees represented will be certified as a collective bargaining unit. The employees would then have the right to bargain collectively with the employer over wages, hours, and other conditions of employment. All union employees are bound by these collective bargaining agreements.

fragile-parcel-1279274-m.jpgNeedless to say, collective bargaining agreements will differ from workplace to workplace, and in some cases, local units may clash with the national union. Such is the case with United Parcel Service (UPS) (login required), whose members are represented by Teamsters. While the Teamsters leadership approved a national contract, local units -- including Local 89 in Louisville, Kentucky, representing 10,000 members -- are still dissatisfied with areas like restricting overtime, wages for part-time workers, and healthcare. Since UPS must negotiate with the local bargaining units, issues that were supposed to be resolved in June have resulted in delayed agreements.

It is unclear how far apart the parties are over the new labor agreements. A Teamsters official spokesperson declared that the master contract was the "best private-sector labor contract in the country," raising wages by $4 an hour, creating 2,500 jobs, and adding several employee protections. At the very least, the national leadership and the local units are far enough apart that Local 89 in Louisville has urged its members to vote no on the latest proposal. Now everyone awaits to see whether the separation will result in a strike.

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October 2, 2013

Sixth Circuit Finds That Employer Who Terminated Employee Due to Her Romantic Relationship Is Not Liable in Stevens v. Saint Elizabeth Medical Center, Inc.

In the recent case Stevens v. Saint Elizabeth Medical Center, Inc., the Sixth Circuit Court of Appeals ruled that terminating an employee after discovering a consensual, but inappropriate, workplace relationship that has soured is not grounds for wrongful termination or hostile work environment.

gavel-4-1409594-m.jpgThe case involved a nurse, Caroline Stevens, who worked for Physician Associates, LLC and Patient First Physicians Group, the latter of which was later acquired by Saint Elizabeth Medical Center. Stevens served as a nurse and personal assistant for Dr. Donald Saelinger, the Chief Executive Officer for Patient First Physicians Group. During many of the years they worked together, Stevens and Saelinger had a romantic relationship, until Stevens broke it off in 2009 when she learned that Saelinger had not divorced his wife.

Stevens later filed a complaint that her site supervisor, Gary Brown, was pressuring her to take a new position after Saelinger expressed a desire to reduce his patient load. She noted that no patients had been transferred to other doctors. Brown was aware that Stevens and Saelinger used to be in a relationship. Investigation into the complaint revealed that Stevens and Saelinger not only had an affair, but that they also had several sexual episodes on office grounds. As a result, their employer gave them both the option of resigning or being terminated. Saelinger resigned, while Stevens was terminated. Stevens then filed a lawsuit against Saelinger, Physician Associates, Patient First Physicians Group, and Saint Elizabeth Medical Center, alleging sexual harassment under Title VII, the Kentucky Civil Rights Act, wrongful termination (retaliation) and fraud. The defendants filed a motion for summary judgment and the district court ruled in their favor. Stevens then appealed to a three-judge panel on the Sixth Circuit to review the case.

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September 23, 2013

Seventh Circuit Court of Appeals Rules That Employee Terminated For Mediation Misconduct Did Not Face Retaliation in Benes v. AB Data, LTD

Under Title VII of the federal Civil Rights Act of 1964, discrimination against employees on the basis of race, gender, national origin, religion, age, or disability is prohibited. That includes not just discrimination in hiring, firing, or every day workplace activities, but also retaliatory acts against employees who report workplace discrimination. Retaliation can include demoting the individual or terminating his or her employment. The question is what constitutes retaliation. Not long ago, the Seventh Circuit Court of Appeals determined that one case of firing did not meet that threshold.

handshake-671413-m.jpgIn Benes v. AB Data, LTD, the employee, Michael Benes, had filed a claim with the Equal Employment Opportunity Commission (EEOC) stating that the AB Data firm committed gender discrimination. The claim reached the mediation phase, where Benes first had a session with his employer before the two parties separated and used a go-between to relay each other's offer. After learning of the employer's offer, Benes went into the room where the employer's representatives were gathered and exclaimed that they could "shove" their proposal and fire him, and he would take them to court. The employer responded by terminating Benes's employment. Benes then filed a lawsuit under Title VII, claiming retaliation rather than gender discrimination.

A magistrate judge ruled in favor of AB Data on a motion for summary judgment, stating that Benes had been fired due to misconduct during the mediation rather than for retaliation. Retaliation is only prohibited in cases where "[a person] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

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September 17, 2013

Indiana Superior Court Judge Rules That Indiana's "Right-to-Work" Law is Unconstitutional

Until recently, Indiana was known as a "right-to-work" state. "Right-to-work" does not mean that all willing and able-bodied people have the right to a job. Rather, it means that employees who are not part of unions should be able to enjoy the benefits that union employees won through collective bargaining -- without having to pay union dues or be bound by the collective bargaining agreement like union employees. "Right-to-work" is designed to weaken unions' power, on the basis that fewer employees will want to join a union if they can get the same benefits without any sacrifices. Twenty-four states have enacted "right-to-work" legislation, including Indiana in February 2012.

immigration-rally-1-520992-m.jpgHowever, recently a Lake County Superior Court judge ruled that Indiana's "right-to-work" law was unconstitutional. Judge John Sedia stated that the reason was because Indiana's constitution calls for just compensation for services. Permitting non-union members to enjoy the benefits of union victories was not just compensation.

The case against Indiana's "right-to-work" law was originally filed in February 2013 on behalf of members of the International Union of Operating Engineers Local 150 AFL-CIO. It was not the first time that unions challenged the law after Indiana became the twenty-third "right-to-work" state. The ones who brought the most recent case had previously brought the case in federal court, claiming that the "right-to-work" law violated the United States Constitution and the state constitution. However, the federal court dismissed it without prejudice, claiming that the case should be brought in state court.

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September 12, 2013

Walmart Workers Across the Nation Go On Strike to Protest Wages, Unfair Labor Practices

Recently, in an effort similar to the fast food workers' one-day strike, Walmart employees in 15 different cities protested the company's disciplinary actions toward 80 employees who were part of a previous protest. While Walmart officials claim that the disciplinary actions had nothing to do with the protest, Walmart employees claim otherwise, and were illegal, given that the protest was over unfair labor practices. Employer acts that punish employees for striking over unfair labor practices violate the federal National Labor Relations Act (NLRA).

Until recently, strikes protesting Walmart's treatment of employees were rare. Those who makin-change-680711-m.jpgdid protest faced stiff consequences, such as 60 Walmart employees in California who were fired after protesting outside of a shareholders meeting. Employees who dared to strike often received little support. This time, however, Walmart employees received support from an advocacy group intended to organize them, called OUR Walmart. The goals of OUR Walmart include instituting minimum pay of $13 per hour, full-time jobs available to those who want them, predictable work schedules and health care that is affordable. Some common complaints about Walmart are that it provides jobs that are less than full time in order to circumvent federal health care law, yet has unpredictable shifts that prevent employees from taking on second jobs to make ends meet.

While Walmart officials argue that hourly workers earn close to $13 an hour anyway, other groups place the average at less than $9 per hour, barely enough to cover gas, food, and rent. Meanwhile, Walmart continues to profit even in an uncertain economy, churning out $444 billion in sales in 2012, and with higher profits in the first two quarters of 2013.

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September 5, 2013

Sixth Circuit Finds That Employment Contracts That Shorten the Statute of Limitations on FLSA Claims Are Invalid in Boaz v. FedEx

When employees discover that their wages have been illegally withheld, or that their employers have committed other acts that would be illegal under state or federal law, it is often months or years after the injury first occurred. Whether an employee can get relief, and how much, depends upon whether the statute of limitations has run. The statute of limitations acts as a time limit for which an injured party can file a lawsuit from the date of the injury. This time limit may vary by state, type of injury, or statute. In Kentucky, the statute of limitations for labor law claims is five years, while it is two years for Indiana. The statute of limitation may also specify that the clock starts running only after the injured party "should have known" about the injury, rather than when the injury actually occurred.

copy-cat-295013-m.jpgMany employers have sought to circumvent the statute of limitations by placing language in employment contracts that shortens the amount of time employees have to file a claim. They argue that these clauses are valid, as the employee agrees to them when he or she signs the contract. However, this past month, the Sixth Circuit Court of Appeals disagreed.

In Boaz v. FedEx, the Sixth Circuit held that a contract clause mandating that a suit must be filed within six months of the injury was invalid. The case began in 2009, when FedEx employee Margaret Boaz sued her employer for wage and hour and Equal Pay Act violations between 2004 and 2008. Boaz had taken over a higher position with many more responsibilities, but her pay reflected her original low-level status. Boaz argued that she should have been paid what the previous male employee in that position was paid. FedEx, in turn, argued that Boaz's lawsuit should be dismissed because under her contract, she had only six months to file from the time the pay disparity last occurred.

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August 28, 2013

Kentucky Court of Appeals Rules That Morbid Obesity Is a Disability in Pennington v. Wagner's Pharmacy, Inc.

Under the federal Americans with Disabilities Act (ADA) and Kentucky law, private employers with at least 15 employees cannot discriminate against employees with a disability. That means that they cannot refuse to hire, promote, or train otherwise qualified disabled employees, nor can they deny them pay or benefits, or terminate their employment just because of the disability. Qualified disabled employees must receive reasonable accommodation for their conditions unless the accommodation would impose "undue hardship." Reasonable accommodation is any adjustment or modification needed for the employee to do his/her job. It usually becomes an undue hardship when the cost is too great for the organization to bear. However, most accommodations are inexpensive and easy to implement.

weighing-788291-m.jpgThe question is what qualifies as "disabled." While certain physical and mental disabilities are widely accepted, others are more controversial. For instance, many debate whether obesity can be considered a disability, even after the American Medical Association labeled it a disease. Is obesity a condition that the person brought on through a lack of self control, or a true illness? The Kentucky Court of Appeals came down on the side of illness, and a disability, in Pennington v. Wagner's Pharmacy, Inc.

In Pennington, Melissa Pennington worked for 10 years as a food truck operator for Wagner's Pharmacy. Pennington was five feet, four inches and weighed 425 pounds. In 2007, Pennington went to the manager's office on her off-day to collect her paycheck. Pennington was not at her "best" appearance due to moving into a new residence. Soon after, the manager directed Pennington's supervisor to fire her for her appearance. However, Pennington's coworkers claimed that Pennington was fired because she was "overweight and dirty."

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August 21, 2013

Fast Food Employees in Kentucky and Other States Hold a One-Day Strike to Raise the Minimum Wage

In Kentucky, the current minimum wage is $7.25 per hour, the same as the federal minimum wage. Yet it is estimated that $17.18 per hour, full time, is necessary to support a Kentucky family of two adults and two children. That means countless families are living on the edge of poverty, even if both parents have full-time jobs. Minimum wage food service employees across the country are hoping to change that.

Screen Shot 2013-08-09 at 3.04.22 PM.pngRecently, thousands of employees in Kentucky and other states walked out on their jobs at various fast food restaurants, hoping to increase their wages from $7.25 to $15 per hour. One employee noted that even with two jobs, he did not have enough money to buy shoes for his children or insure his car. The protest lasted one day and took place at a time when even members of Congress are calling for a minimum wage increase.

While the federal Fair Labor Standards Act (FLSA) provides numerous protections for hourly workers, including a minimum wage, additional pay for work over eight hours in a day (or 40 in a week), and time for breaks and meals, it does not mandate that the minimum wage be tied to the cost of living. Therefore, the minimum wage has tended to lag behind. While some states have higher minimum wages to bridge the gap, Kentucky -- as noted above -- is not one of them. Many have called for some sort of wage boost: President Obama has advocated for an increase to $9 an hour, while 100 economists recently supported a bill that would have raised the minimum wage to $10.50 an hour.

Those who seek an increase have traditionally run up against industry claims that more money means fewer jobs. This time is no exception. The restaurant industry argues that if workers get $15 an hour, restaurants will close and there will be fewer jobs all around. Yet given the restaurant industry's profits, many employees view such arguments with skepticism.

Although the fast food employees participated in a strike, they do not belong to a union. However, their willingness to strike suggests that parts of the food industry may one day be unionized. Fast food employees have traditionally been tough to organize because it is such a high-turnover industry whose workers are thought to be "easily expendable." Yet for this latest protest, the Service Employees International Union has provided funding and staff to help organize.

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August 14, 2013

Firefighters Discriminated Against by Multiple Choice Test Can Be Promoted - Howe v. City of Akron

In Kentucky and other states, employers must be careful to avoid discriminatory practices -- such as refusing to hire or promote on the basis of race, national origin, gender, age, religion, or disability. As a result, many employers have turned to solutions like standardized testing to determine a candidate's eligibility. The theory is that such tests will provide an objective assessment of the candidate's skills and knowledge, regardless of background. Unfortunately, sometimes these tests can produce the harmful results that they were meant to prevent.

Screen Shot 2013-08-09 at 2.54.01 PM.pngIn Howe v. City of Akron, the Sixth Circuit Court of Appeals considered a case where an "objective" test ended up discriminating equally against black and white candidates. The case involved promotion procedures of the Akron, Ohio fire department: for promoting employees to captain and lieutenant positions, the department used a 100-question multiple choice test. The top three scorers would then be chosen for an interview. The results were that while 75% of each race and age group passed the test, white people were promoted to lieutenant at a higher rate over black people -- 36% versus 20%. However, the results were reversed with captain positions -- 71% of black people were promoted versus 27% white people.

In 2006, 23 employees who were not promoted sued the city under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, claiming disparate impact. In 2008, the district court judge, on the advice of the jury, found in favor of the employees and awarded them damages in equal amounts: each lieutenant candidate received $9,000 in compensatory damages and $72,000 in front pay, while each captain candidate received $10,000 in compensatory damages and $80,000 in front pay. However, the district court granted the City of Akron's request for a new trial for damages because of the jury's choice to award equal amounts, despite the employees' different circumstances. The court also issued an injunction requiring the City to promote the employees no later than July 2011.

The City eventually appealed to the Sixth Circuit, arguing that there was not enough evidence that its test produced a disparate impact, and that the district court abused its discretion by issuing the injunction. Because the district court had not yet issued a final decision on the disparate impact claim, the Sixth Circuit looked at only whether the lower court had abused its discretion.

The Sixth Circuit considered the standard for issuing a preliminary injunction: whether the "movant" (party seeking the injunction) is likely to prevail on the merits of the case; whether the movant would suffer irreparable injury without the injunction; whether the injunction would cause substantial harm to the other party; and whether the injunction would be in the public interest. The Sixth Circuit concluded that the employees had met the burden for a preliminary injunction in that they were substantially likely to succeed on their disparate impact claim; that the employees would suffer irreparable injury if they were not promoted because they would not be able to gain the experience to move to the next rank; the City would not be substantially harmed by the injunction; and there was no evidence that promotions would harm the public interest.

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August 7, 2013

The Sixth Circuit Finds That Registered Nurses Are Supervisors Under the National Labor Relations Act in GGNSC Springfield v. NLRB

The National Labor Relations Act (NLRA) of 1935 gives certain employees the right to form a union and participate in "protected concerted activities." The question is which employees have that right. NLRA Section 2 specifically prohibits supervisors from organizing, but an employee's role is not always so clear-cut. As a result, many cases before courts or the National Labor Relations Board (NLRB) involve whether certain employees are supervisors, or part of another group exempt from NLRA protections.

Screen Shot 2013-08-09 at 2.39.43 PM.pngRecently, in GGNSC Springfield v. NLRB, the Sixth Circuit Court of Appeals held that registered nurses were considered "supervisors" under the NLRA, and therefore had no right to organize.

The case involved 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing assistants (CNAs) at Golden Living Center, a nursing home in Springfield Tennessee. The nursing home had 100 employees and provided short and long-term care for 120 residents in two different wings of the facility. Two to six RNs and/or LPNs were assigned to a wing. Each RN reported to the director of nursing, who oversaw patient care along with two assistant directors.

In October 2011, the International Association of Machinists and Aerospace Workers sought to represent the Golden Living Center RNs in collective bargaining. The union petitioned the NLRB, but the Golden Living Center opposed the petition, claiming that the RNs were "supervisors" under the NLRA. After a hearing, the NLRB ruled in November 2011 that the RNs were not supervisors and certified them as a bargaining unit. The RNs held an election and elected the union as its bargaining representative.

However, the Golden Living Center refused to bargain with the union, and the union submitted a complaint to the NLRB that the nursing home had committed unfair labor practices. The NLRB sustained the complaint and ordered the Golden Living Center to bargain with the union. The Golden Living Center then appealed to the Sixth Circuit.

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May 22, 2013

Even Teenage Seasonal Employees Can Experience Kentucky Employment Discrimination

As schools are letting out for the summer, some high school and college students will turn their attention to earning some cash during their break. Being new to the workplace, many students are unaware of the laws in place to protect them and others from workplace discrimination and sexual harassment. These laws protect workers who are employed by companies of a certain size, regardless of whether the job is full-time, part-time, or seasonal. The Equal Employment Opportunity Commission (EEOC) gives the following advice to young workers:

Don't Discriminate: You should not treat your co-workers unfairly or harass them because of their race, skin color, national origin, sex (including pregnancy) religion, disability, age (age 40 or older) or genetic information. For example, you should not tell sexual or racial jokes at work or tease people because they are different from you.

Report Discrimination: You should tell your company about any unfair treatment or harassment. Find out if your company has a policy on discrimination that specifies who you should contact about these issues.

Request Workplace Changes: You have a responsibility to tell your company if you need a workplace change because of your religious beliefs or disability. Your request does not have to be in writing, but you must provide enough information so your company can determine how to help you.


In a case settled in 2012, an 18-year-old female said she was subjected to sexual harassment by a male cashier while working at a Dairy Queen. During the six months that she worked there, the harassment didn't stop, even after she told her manager. She called the police, who came to investigate while she was working. The manager then fired her while the police were there. She filed a claim with the EEOC, and a complaint was filed alleging sexual harassment and retaliation. The parties settled the case, with the company agreeing to pay $17,500, to provide sexual harassment training to its managers and supervisors, to post a notice about the lawsuit, and to report any additional complaints to the EEOC.

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April 26, 2013

Indiana Restaurant Settles Pregnancy Discrimination Lawsuit

Workplace discrimination takes many forms, including age, race, gender, and disability. All of these types of discrimination are illegal under federal law. A more recent type of job discrimination that has surfaced is pregnancy discrimination.

The Pregnancy Discrimination Act (PDA) was passed in 1978 and amends Title VII of the Civil Rights Act of 1964 to add protection for women in the workforce who are pregnant or have recently had a child. It pertains to those women who are currently employed and those who are seeking employment. In a recent Indiana employment discrimination case, a local restaurant was accused of discriminating against both a current employee and an applicant because they were pregnant.

The first woman in the lawsuit was a server at the restaurant. In August 2010, she told her supervisor that she was pregnant, which she claims was required by the restaurant of all female employees. Her hours were allegedly cut immediately to about 50% of what she was working before she notified them of her pregnancy, and in January 2011 she was terminated. The second plaintiff in the lawsuit was a woman who claimed she applied for a job at the same restaurant in October 2010 but was denied employment because she was pregnant at the time.

In April, 2013, the restaurant settled the lawsuit with both women. The first woman who had been an actual employee of the restaurant received $18,000; the applicant received $8,000. In settling the case, the restaurant did not admit guilt, the owner stated they settled to avoid a costly trial. As a result of the settlement, the restaurant is no longer allowed to ask applicants if they are pregnant or require employees to inform their supervisors if they become pregnant. They also must have a written policy against sex discrimination, and specifically pregnancy discrimination, and they are required to have a way to handle these types of complaints in the future. If an employee requires a revised schedule due to pregnancy, her request must be accommodated.

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March 22, 2013

Woman Can Continue Indiana Discrimination Lawsuit against Catholic Diocese

In April, 2011, an Indiana woman's teaching contract was not renewed by the Catholic school where she had taught for eight years. The reason allegedly given to her was that she had undergone in vitro fertility treatments, which is against the doctrine of the Catholic Church, and that as a teacher at the school she was required to abide by that doctrine. She filed a lawsuit against the diocese claiming gender and disability discrimination.

This case is similar to one filed in Missouri. In that case, a woman claimed she was discriminated against because of her disability when she was wrongfully terminated by a Lutheran school. The school said the lawsuit should be dismissed because of ministerial exception, which is meant to keep the separation of church and state by allowing religious institutions to make employment decisions without regard to federal discrimination laws. In some situations, this separation makes sense. For instance, a Catholic church shouldn't be required to consider a Jewish rabbi as a potential leader so that they are not guilty of religious discrimination. But who this exception pertains to outside of direct ministry is still unclear, despite a Supreme Court's ruling in January 2013. The ruling agreed with the lower court's decision in the Missouri case that allowed the Lutheran church to terminate the teacher, but it basically said every case of this kind should be considered individually.

Based on the Supreme Court's decision in the Missouri case, the Catholic diocese in Indiana filed a motion to dismiss the case against them, stating that Title VII of the Civil Rights Act and the Americans with Disabilities Act did not apply in this situation because the school is a religious institution, and therefore is exempt. The district court judge hearing the case denied their motion, allowing the case to go forward.

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March 1, 2013

"Open Secret" Causes Workplace Discrimination against Nurses, Other Medical Professionals

Those in the medical field are required by an ethics code to treat any patient, regardless of race or gender. But apparently the same does not hold true for patients not discriminating against medical professionals based on these same criteria. Often called an "open secret" in the medical world, patients sometimes insist that they only be attended to by nurses or doctors of a certain race or gender, and even in this day and age, their requests are sometimes granted.


This obvious employment discrimination does not sit well with some, including two nurses in Michigan who have filed a race discrimination lawsuit against the hospital where they work. According to the lawsuit, a male white supremacist told the hospital that he didn't want any African-American nurses tending to his newborn. In response to his request, a note was allegedly put on the infant's chart that read "No African-American nurse to take care of baby." Even after the note was taken off the chart, no minority nurses were assigned to care for the infant for at least a month.

While their actions do appear to be discriminatory, supervisors at the Michigan hospital may have felt they were doing the right thing for everyone involved. They may have thought they were protecting their nurses from a potentially violent situation by giving in to the father's demands, while keeping the father happy at the same time. However, the fact remains that if they were singling out employees based on their race and treating them differently, that is discrimination. As discussed in a previous article, even if the employer thinks they are acting in the employee's best interest, he or she cannot treat an employee differently because of their race, age, gender, disability, or religion.

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