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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February 22, 2013

Can an Employer Discriminate Against a Kentucky Worker for Bad Credit?

In a word, yes. This is unfortunate, for the applicant and potentially for the employer as well. Several states, including Kentucky, have tried to abolish this practice, but not many have been successful. In 2011, House Bill 144 was introduced. It would have amended the state's discrimination laws to include those with less-than-stellar credit ratings. Here is the proposed language:

(d) To fail or refuse to hire, to discharge, or otherwise disadvantage any individual with respect to compensation, terms, or conditions of employment based on the individual's credit history or credit score, unless the individual's credit history or credit score is directly, materially, and substantially related to the duties and performance of the employee or the overall operation of the employer's business.

For people who have been unemployed or forced to take lower-paying jobs because of the economy, this change could have been very helpful. People who are already struggling to make ends meet certainly do not need to be denied employment because they are having a hard time paying their bills. Other situations that might negatively affect someone's credit score include divorce, the death of a family member, or medical bills. All of these scenarios are essentially out of a person's control, and should not reflect poorly on them when it comes to potential job performance.

But employers are not willing to give up this screening tool. They think a person's credit speaks to their level of responsibility. This is not always the case. Someone who has simply fallen on hard times can still be a reliable, responsible employee. Employers point to the fact that a person can protect their privacy by refusing to give their permission to have a credit check done. But that would most likely raise a red flag and have the same effect as a low credit score, and the person would still be denied the job.

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February 12, 2013

What Constitutes Sexual Harassment?

Everyone knows that sexual harassment is wrong and that it can lead to serious consequences if it occurs in the workplace. Some types of sexual harassment are very obvious, forcing oneself on another person, firing someone for refusing to have a sexual relationship, making continuous lewd comments or sexual requests. But some aspects of sexual harassment are a little less clear.

Touching someone else while at work can also be obvious sexual harassment, depending on where on the body the person is touched. As children, we are taught that places covered by our swimsuits should not be touched by others because they are private. This rule also applies to the workplace. But touching in other places can be considered sexual in nature as well.

Take for example the recent case in Oregon where a police captain touched several women on the upper leg. His chief stated the touching was not sexual in nature because the offender did not mean it to be, but several others begged to differ. A slap on the leg from one guy to another probably would not be considered sexual, but that is not what happened here. The captain touched several female subordinates on the upper thigh, and those who were touched said he either rubbed their leg or allowed his hand to linger.

First, it is not up to the person who is doing the touching to determine whether it was sexual or not. The person being touched is the one who determines if it made them feel uncomfortable or threatened. Second, because the person doing the touching was their supervising officer, the women probably felt more intimidated and unwilling to say anything about the behavior. Third, the upper thigh is a questionable area, unlike a shoulder or arm.

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January 24, 2013

Louisville Kentucky Landmark Restaurant Closes Down Amid Unfair Pay Practices Claims

Lynn's Paradise Café was a Louisville, Kentucky icon. While people may have argued about the quality of the food, there was no denying the fact that the décor and atmosphere was completely unique, and that it helped the city's restaurant scene. It was featured in several food shows, including Throwdown with Bobby Flay, in which he challenged Lynn Winters to a breakfast food contest.

But what happened behind the scenes at Lynn's may never be known for sure, because the restaurant was suddenly closed on January 11, 2013. With a simple sign on the door and no notice to its employees, the quirky restaurant ceased operations after 22 years. While Lynn has said it was simply time for her to do something different, her ex-employees are saying they were subjected to harassment and forced to bring their own money to work.

While there has not been much additional information from reputable sources on the harassment claims, much has been written about the second issue. According to news reports, all of the servers were recently required to bring $100 with them every time they worked. This money was supposed to be used to "tip out" to the other wait staff, like those who bus the tables. Before the days of credit cards, servers received their tips right away out of the cash used to pay for the meal. Even with credit card payments, some restaurants still give tips to their servers at the end of each shift. However, Lynn's had apparently changed their policy so that the credit card tips were included in their paychecks. This most likely led to a shortage of tip money to share with the other wait staff at the end of a shift.

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January 14, 2013

Can an Employer Discriminate Against You for Your Own Good?

Employers who face employment discrimination charges often come across as villainous and uncaring. But sometimes, employers that may have actually been trying to look out for an employee end up discriminating against them. According to the Equal Employment Opportunity Commission (EEOC), this still does not make the discrimination acceptable. The following three scenarios all resulted in workplace discrimination actions being filed against the employers, two under the Americans with Disabilities Act and one under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act was enacted in 1978, and was added to Title VII of the Civil Rights Act of 1964 under the section regarding sexual discrimination. This new section made it illegal to discriminate against women who were pregnant or had medical problems related to pregnancy or childbirth. On November 13, 2012, the EEOC issued a press release stating it had filed a lawsuit under this portion of the act on behalf of a pregnant woman who had been terminated. The hotel franchise owner said she was terminated because her job as a housekeeper required that she be around cleaning products, which was unsafe for her baby. Whether this was truly the reason, or if they terminated her in anticipation of her missing work once the baby was born, is irrelevant. A woman cannot be fired because she is pregnant.

The Americans with Disabilities Act was passed in 1990 to protect those with disabilities from being discriminated against in employment, housing, and public services. Title I of the act covers workplace disability discrimination. A case filed by the EEOC on December 4, 2012, involves an employee who had a prosthetic leg. She was assigned to a temporary job by a placement agency in Illinois. Her job was to inspect or package electronics for shipping. While she was working on her second day, she was told that she was being removed from the position because the employer was afraid someone would bump into her. The placement agency promised to find her something else where she could sit down and work. She was never contacted about another job, so she filed a complaint with the EEOC. After trying to negotiate a settlement, the EEOC filed a lawsuit against both the placement agency and the electronics company. In the press release, the EEOC states, "Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct."

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January 9, 2013

Can a Kentucky Employee File a Discrimination Lawsuit If They Are Fired for Being Vegan?

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on several factors, including religion. The "Employer Practices" section of Title VII states:

It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

While this section lists several different characteristics of people, veganism does not appear as one of the categories. Veganism, a belief that one should not consume any type of animal product or byproduct, would appear to most to be a dietary decision, similar to someone deciding to cut out sweets or carbs or some other category of food for whatever reason. But in an employment discrimination lawsuit being heard right over the Kentucky border in Cincinnati, Ohio, one former employee is claiming that she was discriminated against because of her religious beliefs based on her being a vegan.

The problems started when the employee, who worked at a children's hospital, refused to get a flu shot because the vaccination is incubated in an egg. Taking the shot would have gone against her vegan beliefs. The hospital fired her for her refusing to be vaccinated. Her discrimination and wrongful termination lawsuit claimed she was discriminated against for her religious beliefs, namely veganism. The hospital filed a motion to dismiss, stating that the former employee "failed to state a claim for a religion protected under law," which means they don't consider veganism a religion and didn't think the court would either. To the hospital's surprise, the court denied their dismissal motion because it felt the employee should have a chance to prove that her veganism is indeed a religious belief.

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January 3, 2013

Kentucky Union Workers to Be Reinstated in Jobs after Collusion Ruling

According to The People's Law Dictionary, collusion is "where two persons (or business entities through their officers or other employees) enter into a deceitful agreement, usually secret, to defraud and/or gain an unfair advantage over a third party, competitors, consumers or those with whom they are negotiating." Allegedly this is what occurred recently in Louisville, Kentucky between a carhauling company, the Ford Louisville Assembly Plant, and the United Auto Workers (UAW). Earlier in 2012, Jack Cooper Transport, the company that had hauled new vehicles from the Ford plant since the early 1950s, was replaced by Voith Industrial Services. While hiring a new contractor to provide services is not illegal by any means, the way in which it occurred in this case appears to be questionable.

Teamsters 89, the union for the Jack Cooper Transport employees, claimed that 166 of their members were replaced by the new contract with other employees who were not with the Teamsters and were paid much less. The National Labor Relations Board (NLRB) determined that the new carhauling company - Voith - joined forces with the UAW to keep the higher-paid Teamsters from obtaining jobs under the new contract. On December 21, 2012, Voith was ordered to hire 85 of the displaced workers at their original pay rate, pay them lost wages, and nullify the deal with the UAW while a new contract is drawn up.

The National Labor Relations Act (NLRA) was originally passed in 1935 and was called the Wagner Act. It not only allowed employees to unionize, but also protected employees who participated in a union from discrimination. In 1947, the Taft-Hartley Act was passed. It set some boundaries for unions and established some regulations. Today's statute - The Labor Management Relations Act (LMRA) - is a combination of the NLRA and the Taft-Hartley Act, and is enforced by the Nation Labor Relations Board. Under the NLRA, employees can file a petition to unionize if 30 percent of employees support it. An election is then held, but actual unionization can be delayed by objections filed by the company or those wishing to unionize if either group thinks the election was unfair.

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December 18, 2012

Wrongful Termination Suit Filed against JCPS in Louisville Kentucky

University of Louisville athletes and Jefferson County Public Schools (JCPS) are frequently in the news in Kentucky. But normally they are not in the same article. Recently, however, these topics shared a headline, and it wasn't exactly positive for either party.

Joshua Tinch played both basketball and football for the University of Louisville when he attended college there. In 2011 he was hired by Jefferson County Public Schools to work in their suspension reduction program at Iroquois High School. About two weeks after he was hired, a student came forward, claiming he had inappropriate contact with her when she was 16. Tinch was suspended during an investigation and later terminated by the school system. At the end of November, 2012, Tinch filed a wrongful termination lawsuit against JCPS and others stating he was not given an opportunity to defend himself and that his reputation was ruined when the accusations became public. The lawsuit requests that he have that opportunity to defend himself at a jury trial and asks for punitive damages.

While no adult should be allowed to continue working at a school if he or she has had an inappropriate encounter or relationship with a student, the adult should be able to address the accusations before being terminated. There have been situations in which students were upset by what a teacher or coach did or didn't do, and they have made false allegations against them as a form of retaliation. Once such an accusation has been made, it can be very difficult for an innocent adult to clear his or her name. It is even more difficult if the accused is not allowed to tell their side of the story. In this case, Tinch is claiming that the majority of text messages that were exchanged between him and the student were from the student, and that he was not even sure who the messages were coming from. It has also been reported that the student only told someone about the alleged inappropriate contact after Tinch did not text her or see her on her birthday.

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