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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December 11, 2012

Employment Discrimination Lawsuits Filed Against Kentucky-Based UPS and FedEx

628379_had-light.jpgUPS, based in Louisville, Kentucky and FedEx are two of the largest package delivery companies in the world. However, even this worldwide presence does not mean either company may not discriminate against their employees. Two recent lawsuits against UPS and Fed Ex allege just that.

The case against UPS involves an employee who was hired as a truck loader in New Jersey but never got to work a single day because he was fired before he could start. The new employee was a Jehovah's Witness, and he was scheduled to start in the spring on the same day as the Memorial of Christ's Death, a celebrated annually by his faith. He asked that he be able to start on a different day, start at a different time, or have an hour off during his shift to attend the service. His request was denied, and not only was he terminated, but he was also marked as someone who should never be hired again at UPS. After trying unsuccessfully to settle the matter with UPS, the Equal Employment Opportunity Commission (EEOC) filed a religious discrimination lawsuit against the company at the end of November, 2012.

In Utah, a driver employed by FedEx was allegedly terminated because of his accent. The employee had lived in Russia until 2005, when he and his family fled and became political refugees in the U.S. He started driving for a company that operates FedEx trucks in 2009 and did not seem to have any problems until the fall of 2012. Apparently someone at an Iowa weigh station sent a warning to FedEx that one of their drivers was unable to communicate. FedEx then allegedly notified the company that employed the driver that he had to be terminated. The driver was fired without ever speaking to anyone at FedEx or being given a chance to prove his English abilities and he became an independent truck driver. He filed a national origin discrimination lawsuit on November 23, 2012 in U.S. District Court in Salt Lake City, Utah.

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December 6, 2012

Supreme Court to Rule on Case Regarding Definition of "Supervisor"

On November 26, 2012 the Supreme Court heard the case of Vance v Ball State, an Indiana workplace discrimination lawsuit. Their ruling on the case will likely affect not only plaintiff and defendants in the case, but also other current and future workplace harassment lawsuits.

Here is a little background on the case. Ms. Vance started at Ball State University in Indiana in the banquet and catering department in 1989. During her numerous years of employment, she was usually the only African-American employee. One of her supervisors did not seem to care for her. She allegedly threatened her physically, and at one point the plaintiff heard that the supervisor referred to her in a derogatory manner because of her race. She reported the behavior, but the only outcome was both women were required to undergo counseling. The worker contacted the Equal Employment Opportunity Commission (EEOC) and filed a discrimination and retaliation lawsuit against the university. The lower court that heard the case threw it out because they did not think the alleged harasser was an actual supervisor of the plaintiff. She then appealed to the U.S. Supreme Court.

So the matter before the Supreme Court is deciding what constitutes a "supervisor." The federal appeals courts seem divided on the issue, with some using a broader definition than others. The court that heard the case above took a very narrow approach to the meaning of the word. They ruled that because the alleged harasser did not have the power to hire or fire employees, she was not a supervisor. The EEOC and some other federal courts define a supervisor as someone who "has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee's daily work activities." The plaintiff in this case felt the harasser was her supervisor because she was not required to fill out time sheets like the rest of the employees.

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November 29, 2012

New Whistleblower Legislation Instituted by Federal Government Good for Kentucky Employees

A whistleblower, in very simple terms, is someone who realizes something may be not quite right and decides to tell someone else about it. While kids who perform this same type of service are often called tattle-tales, adults should not be chastised or punished for doing the same. If an employer appears to be operating in a way that breaks a federal law, an employee should feel comfortable telling the appropriate people about it so the situation can be investigated, and remedied if necessary.

Most workers employed by the government and in the private sector are protected by whistleblower laws. Employees are covered by a provision of the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989(WPA). Under these acts, an employee who believes something they witnessed was in violation of a federal law, was fraudulent, was wasteful of money or resources, or might cause harm to the general public has the right to report it to the person or group of their choice without fear of retaliation. If an employee has reported some type of federal misconduct and has been retaliated against, he can take legal action under WPA and seek restitution such as repayment of lost wages if he was wrongfully terminated and other compensatory damages. This law also states that federal officials who have retaliated against a whistleblower may be subject to suspension or dismissal.

Most privately employed workers are also protected if they report a situation that they think breaks a federal law. The United States Department of Labor (DOL) handles whistleblower claims brought by workers in the private sector. If the whistleblowers do not think the DOL has administered their case in a timely manner, the law allows them to then file a lawsuit and have a trial by jury.

On November 27, 2012, President Obama signed new legislation providing additional protection for federal employees. Called the Whistleblower Enhancement Act, it is meant to further encourage those already covered by WPA to continue reporting governmental abuse of power and funds and it also offers protection to some groups who were exempt under the previous acts. This new act changes the burden of proof, making it easier for a whistleblower to prove their case. The Office of Special Counsel, which handles whistleblower cases, will no longer be responsible for paying defendants' attorneys' fees if they lose the case. All airport baggage screeners are now covered by whistleblower laws as are those who work in intelligence for the government. Scientists working for the government who report alleged censorship of their work are also now protected.

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November 19, 2012

Indiana Teacher Claims Age Discrimination at Age 80

How old is too old to work? According to one teacher from South Bend, Indiana, there is no set age. When she feels like she is doing a disservice to the children that she teaches, or herself, she will call it quits. But she refuses to let a school board president decide that for her. And at 80, she does not think her time has come.

The teacher in question filed an age discrimination complaint in the summer of 2012 with the Equal Employment Opportunity Commission (EEOC). As evidence of the discrimination, she has two emails that the president of the school board sent requesting that she and another teacher be "gently escorted out of the classroom" so that two younger teachers could keep their positions rather than being let go. He specifically mentions "two teachers in our system who are 80 (or over) who by all accounts are no longer able to teach adequately."

The teacher says she is perfectly able to continue teaching and has her most recent teacher evaluation from 2010 as proof. Her March 2010 evaluation states that she is able to maintain control in the classroom and teaches effectively, and the evaluator recommends that she be re-employed for the next year.

Sometimes it does seem that younger employees are discriminated against when it comes to downsizing. But it is much more likely that a younger employee will find another position. In his email, the school board president says one of the younger teachers has already been offered a position with another school district and the other one is going to be offered a job elsewhere as well. It goes without saying that the 80-year-old teacher would have had a much more difficult time finding someone to hire her if she had been the one let go.

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November 12, 2012

Electronic Workplace Harassment Does Not Always Happen at the Workplace

Online social media and mobile communication are very prevalent in today's society and are being used in all sorts of ways. They can be used to invite friends to a party, notify faraway relatives that a new baby has arrived, find long-lost friends from high school, and share decorating ideas and silly videos with people around the globe. Even charity efforts have gone mobile as phone apps have been created as a convenient way for people to help donate to those who were affected by Hurricane Sandy. Unfortunately, it can also be used in negative ways as well, such as harassment.

Supervisors and co-workers often find each other on social networks or share cell phone numbers to allow for easier communication. Sometimes it is easier to send a text regarding a work matter than it is to have an actual phone conversation. But these technologies can also be used in an abusive manner and result in workplace harassment or sexual harassment even when an employee is not at work.

There are many different ways a worker can be harassed electronically. If a supervisor repeatedly sends texts messages to an employee asking for a date or an intimate relationship, the employee may feel uncomfortable or threatened. This constitutes sexual harassment and can create a hostile work environment. Sexual harassment can also occur when a supervisor or co-worker emails or posts pictures or jokes of a sexual nature that other employees find offensive. In a recent case, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a company because a manager was sending sexual texts to an employee, who told her supervisor. When the supervisor reported the harassment, the company allegedly retaliated against him by firing him. A settlement for $2.3 million was made by the company for both the sexual harassment and retaliation claims.

Other types of harassment or workplace discrimination can also occur. If supervisors or co-workers are posting disparaging remarks regarding an employee's disability, race, ethnicity, gender, or religion, this may also be discrimination. An employee was recently awarded $1.6 million by a court because co-workers had posted negative comments about his disability and his employer did not take any action when he reported the discrimination.

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October 5, 2012

Kentucky Coach Claims Age and Race Discrimination in Wrongful Termination Lawsuit

1015485_basketball.jpgOn August 31, 2012, a Kentucky high school coach that was fired in 2008 filed a wrongful termination lawsuit against the school board. He had been employed by the school for 22 years as an assistant coach, and an additional 11 years as head coach of the boys' basketball team. Despite his long tenure, eight district championships, and a 204-117 record, the school terminated him. His lawsuit claims he was a victim of age and race discrimination.

Kentucky is an "at-will" employment state. This term means that an employer can fire an employee whenever he pleases. However, there are certain situations in which the employee is protected. If the employer and employee signed an employment contract stating the employee has to remain employed for a certain length of time, then an employer cannot terminate the employee before the contract is up without valid reason. Otherwise, this would be a breach of contract. Union employees also have some protection against being fired at the whim of them employers.

A third type of protection for employees comes under Title VII of the Civil Rights Act of 1964 and the Age Discrimination Act. These acts pertain to employees that belong to groups of people who have a history of being discriminated against because of certain characteristics such as their gender, race, religion, ethnicity, and age. If an employer terminates or otherwise negatively treats an employee based on one of these characteristics, the employee has been discriminated against and has the right to seek compensation from the employer.

Some discrimination lawsuits ask for lost income with interest, benefits, and awards for emotional distress, all of which are known as compensatory damages. Others also ask for additional money in an attempt to punish the company for its wrongdoing. This type of damages is called punitive damages, and they are often awarded to convince the employer not to discriminate against future employees.

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September 25, 2012

Employment Lawsuit against Restaurant Chain Claims Employees Were Underpaid

Once again, Darden Restaurants is in the news as employees allege that they are not being paid fairly. Darden Restaurants is a huge company, best known for its Olive Garden and Red Lobster restaurants that are located in Kentucky, Indiana, and throughout the United States.

Only two plaintiffs have been named in the unfair pay lawsuit, one in Florida and one in Virginia. However, the attorney who filed the lawsuit sees it becoming a class action lawsuit that could potentially cover thousands of previous and current Darden employees that were employed by the company anytime between 2009 and 2012. The unfair wages lawsuit was filed in Florida, where Darden is headquartered.

The lawsuit is based on the federal Fair Labor Standards Act (FLSA). FLSA was passed in 1938 and established minimum wage and the 40-hour workweek. It also stated that employees were entitled to time-and-a-half for every hour they worked over 40 hours. FSLA also states that tipped employees are allowed to keep their tips and they will not become the property of the employer. A tipped employee may be required to put their tips in a "tip pool." The tips in the pool are then shared among the employees that regularly receive tips as part of their compensation. An amendment to the Act in 1946 stated that an employee should be paid for any time spent doing work specifically for the employer, even if it was not during the employee's scheduled shift or regular work hours. Another amendment relevant to this case occurred in 1996. Up until this time, employees who received tips regularly were paid 50% of the current minimum wage. But in 1996, the tipped employee's hourly rate was frozen at $2.13 per hour by the federal government.

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September 20, 2012

Franchisee of Restaurants in Kentucky Settles Race Discrimination Lawsuit

An Ohio company that owns Panera Bread franchises in several states, including Kentucky, has settled a race discrimination lawsuit involving an ex-employee in Pennsylvania. The settlement will cost the company at least $76,000, possible more if additional employees come forth to say they experienced discrimination too.

The employment discrimination lawsuit claimed that the ex-employee, who is African-American, was only allowed to work in the kitchen at the restaurant, per the owner of the franchise. He was not allowed to serve customers, run the register or seek a management position because he was not to be seen by anyone. As a result, he was denied any chance of being promoted, even though he worked at the restaurant from November 2009 through August 2011. He finally left because of the alleged unfair treatment.

His lawsuit was not the first filed against the franchisee. A white manager who had been fired at the same restaurant supposedly over medical leave violations filed a lawsuit claiming he had been wrongfully terminated because he refused to stop having an African-American man run the cash register. According to the suit, a district manager said the franchisee would "(expletive) if he got a look at that." The employee that was being allowed to run the register is the one who filed the above lawsuit in January 2012.

The African-American employee will receive approximately $10,000 from the settlement. In addition to paying damages and attorneys' fees, the franchisee was also ordered by the judge to place a notice in local newspapers in every state he has a restaurant, notifying other employees of the settlement in case they were discriminated against as well. They will have the opportunity to join the lawsuit and receive 70 cents per hour for every hour they worked after their first year. This amount represents the extra money they could have earned if they had been given the chance to be promoted after their first year of employment. One attorney estimates that 200-300 current and former employees that were employed by the franchisee between January 2008 and January 2012 may be entitled to this compensation.

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September 11, 2012

Possible Sexual Harassment and Discrimination in Louisville, Kentucky Public Works Department

In two separate cases, a former Louisville, Kentucky public works director has been accused of sexual discrimination and sexual harassment. The director resigned at the end of August 2012. Although he denies his departure was in connection with any of the allegations, it certainly seems to be the case.

Sexual discrimination is illegal under Title VII of the Civil Rights Act of 1964. This portion of the act prohibits employers and supervisors from treating employees differently because of their race, religion, ethnicity, or gender. Employees cannot be turned down for employment, denied promotions, paid less, terminated, or otherwise treated unfairly because of any of these factors. The Equal Employment Opportunity Commission (EEOC) enforces this portion of the act by determining if an employee has a valid claim and contacting the company. If the company refuses to resolve the issue, a lawsuit will most likely be filed.

In the Kentucky sexual discrimination case, a public works employee claimed she was discriminated against because she was female. The lawsuit states she was denied a promotion for 18 months and was only given the job after complaints of potential sexual discrimination were made to the mayor. She was finally awarded the position in June 2012, but allegedly at a lower salary than her male predecessors.

According to the EEOC, "Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964." Sexual harassment involves actions by a supervisor or co-worker that makes an employee uncomfortable. Unwanted sexual advances, inappropriate touching, and the distribution of pictures, cartoons, or jokes of a sexual nature are just a few examples of sexual harassment. A one-time incident involving something of a mildly sexual nature is generally not enough to constitute harassment; it must be either frequent or serious enough to cause a hostile work environment.

In the Kentucky sexual harassment complaint against the public works director, he allegedly entered the employee's cubicle on more than one occasion and hugged and kissed her without her consent. Non-consensual touching like this is quite serious, and the fact that it happened more than once makes it even worse.

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August 29, 2012

Teen Files Religious Discrimination Suit against Burger King

1119511_burger.jpgRecently, many of the workplace discrimination lawsuits filed have involved people over 40 who feel they have been discriminated against because of their age. Employers seem to be favoring younger employees who will most likely work for less pay and benefits. However, in a recent discrimination case, the worker that filed a lawsuit was only 17 years old, and the lawsuit did not have anything to do with her age.

The teen had applied at a Burger King in Texas for a cashier position. She follows the Christian Pentecostal faith, which does not allow women to wear pants. She mentioned this to the person interviewing her and was told that she could wear a long skirt instead of pants. She was hired and reported to work for her first day. The manager handling the orientation not only told her she was required to wear pants, but also told her to leave. The Equal Employment Opportunity Commission (EEOC) agreed that the teen was discriminated against because of her religion and a lawsuit was filed. The suit asks for damages to cover lost wages with interest as well as punitive damages.

This lawsuit is based on Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against potential or current employees based on their religion, among other things. The act states that employers should do their best to accommodate employees' needs based on their religion as long as it does not cause undue hardship on the employer. Undue hardship might be caused by the employer having to spend large amounts of money to make an accommodation or putting other employees in harm's way. In this case, the employee simply wanted to wear a long black skirt instead of black pants to work. How that might cause undue hardship on a fast-food employer is unknown. What is known is that the teen was denied the right to make a little money while she finished up high school.

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