May 8, 2012

Women File Ohio and Indiana Discrimination Lawsuits after Being Fired for Wanting to Have Children

1365997_church.jpgA recent ruling by the Supreme Court has brought to light a legal issue regarding employees of religious institutions that was fairly unknown. "Ministerial exception" is a doctrine that allows religious institutions to make employment decisions without the interference of the federal government. Most employers are governed in part by several federal laws that prevent discrimination and wrongful termination based on age, race, religion, place of origin, and gender. However, those employees who work for church-affiliated organizations may find these laws do not protect them.

In some situations, ministerial exception appears to make sense. A Catholic church should not be forced to hire a Jewish rabbi to perform their services because they are not allowed to discriminate against anyone based on religion. But when it comes to employees such as administrators, school teachers, and hospital workers, when the exception should apply is unclear. In the case heard by the Supreme Court, a school teacher was terminated and she filed a discrimination lawsuit claiming she has been terminated because she had narcolepsy, a sleeping disorder. Officials at the parochial school claimed the lawsuit was invalid because she worked for a religious institution and their decision was covered by the ministerial exception. The Supreme Court agreed.

Two cases that were filed recently illustrate the need for greater definition as to whom the exception applies and to whom it does not apply. In an Indiana discrimination lawsuit, a woman claims she was fired from her teaching position at a Catholic school because she and her husband were attempting to have another child through in vitro fertilization. She had been undergoing the treatments for about a year when the church school didn't renew her 2010 teaching contract. She was told she was terminated because she had gone against the beliefs of the Catholic Church when she started the in vitro treatments and that "[t]he Diocese has clear policies requiring that teachers in its schools must, as a condition of employment, have a knowledge of and respect for the Catholic faith, and abide by the tenets of the Catholic Church as those tenets apply to that person."

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May 1, 2012

Manager of Kentucky KFC Yum! Center Files Whistleblower Lawsuit

The KFC Yum! Center was opened in Louisville, Kentucky with much fanfare in October 2010. Ted Nicholson, general manager of the arena, took part in the excitement and was set to manage the arena through numerous upcoming venues, including the NCAA Tournament this year. Then in February 2012, Harold Workman, president of the Kentucky State Fair Board (KSFB), fired him, much to the surprise of the rest of the fair board and Mr. Nicholson himself. The KSFB chairman tried to get him reinstated to his position, but was unsuccessful. The University of Louisville then hired him to oversee the NCAA Tournament, which appeared to be successful.

With the tournament over, Mr. Nicholson has focused his energy on seeking justice for his alleged wrongful termination. On April 27, 2012, he filed a whistleblower lawsuit against KSFB. A whistleblower is someone who reports a company for a variety of reasons, including illegal activities, mismanagement of funds, corruption, and health or safety violations. This information may be divulged to someone else within the company, an outside person, or law enforcement. If the company retaliates against the whistleblower in any way, including termination, the whistleblower can file a lawsuit. Whistleblowers in Kentucky are protected by federal laws as well as the Kentucky Whistleblower Act. This state act protects employees who divulge information to the proper authorities. It does not allow employees to share confidential or incorrect information, and it gives employers the right to find out what information the employee has shared. Employees who share incorrect information can face disciplinary action.

According to the lawsuit, Mr. Nicholson believes he was retaliated against after telling an outside consultant about some of the issues the arena was having and attributing them to Mr. Workman. The consultant had been hired to review the operation of the arena and Nicholson states his answers to the firm's questions were "honest and sincere." He claims that numerous unqualified employees were hired because they were acquainted with the fair board president and events that were not profitable continued to be booked. When the negative report came back from the consultant, Nicholson claims he was reprimanded by Mr. Workman and ultimately terminated because of it in February. The board president has announced his plan to retire at the end of the year.

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April 27, 2012

Kentucky Bourbon Company Sued for Sexual Harassment and Retaliation

1072868_a_double___.jpgMaker's Mark is known across the country for its ability to make bourbon in Kentucky. On April 6, the Kentucky employment law firm of Miller & Falkner filed a lawsuit against Maker's Mark on behalf of five female employees of the distillery. The complaint, filed in the U.S. District Court for the Western District of Kentucky, alleges that Maker's Mark broke numerous state and federal laws.

The female workers allege in the complaint that their troubles started before and got worse after answering a survey distributed by Maker's Mark. The survey asked employees to tell if they had ever experienced or witnessed sexual harassment or any other type of discrimination at work. The five women answered positively, and they claim they have been treated negatively since then.

Before the survey, the women say they were subjected to a hostile work environment. This situation can occur in a variety of ways, but ultimately it makes the workers feel uncomfortable enough at work that they may consider quitting. In this case the women claim that indecent exposure occurred, inappropriate birthday cards were sent, and sexual encounters were retold while they were trying to work. This type of behavior from co-workers made Maker's Mark and uncomfortable place to work for them.

The lawsuit also alleges that they were victims of sexual harassment. One type of sexual harassment occurs when someone is subjected to unwanted sexual advances or is propositioned. This is the type of harassment that the women encountered at the distillery. Discrimination based on an employee's gender was also noted by the women. They state that they were denied certain positions and were not promoted on certain occasions simply because they were women.

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April 17, 2012

Kentucky Workers Being Worked Too Hard in Warehouses

Amazon is known worldwide for its competitive pricing and efficient shipping. Based in Seattle, Washington, the company has over 70 warehouses around the world and employs a large number of Kentucky workers in its Campbellsville site. On paper, a job with Amazon looks like a great deal. They offer a decent hourly wage, 401(k) with matching and health insurance for full-time employees.

But working for the internet giant also has a down side, as some Kentucky employees have discovered. While Amazon touts its warehouse safety records as being better than the average for warehouses and even department stores, some of their actual employees may disagree. They say the number of reported injuries is kept lower by Amazon in a couple different ways. Some employees are afraid to report incidents for fear of being written up and potentially losing their job. Others are told to attribute a certain injury to a pre-existing condition even though the current injury was work-related. At least some of the Amazon warehouses have their own medical personnel to treat workplace injuries so the employees are not seen by outside doctors, which might lead to a federal report.

Extreme temperatures are also an issue in the Amazon warehouses, as they are in other facilities. But Amazon seems hesitant to allow workers to take more breaks or to work at a slower pace, even when the temperature gets very high. An Amazon warehouse in Pennsylvania was under scrutiny when it was discovered that ambulances were parked outside the building, just waiting to take workers suffering from the heat to the hospital. One Kentucky employee who used to work as a safety official was concerned about the Campbellsville employees when temperatures reached 100 degrees, but he never talked to management about slowing production because he knew it wouldn't happen. To keep employees safe in the heat, he had people walking around offering them Gatorade. Amazon did install air-conditioning in its Lexington warehouse last year, and the rest of their Kentucky facilities should have air-conditioning this year.

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April 5, 2012

Adding Veterans as Protected Class in Workplace Discrimination

Title VII of the Civil Rights Act of 1964 protects several groups of workers from discrimination in the workplace. According to the law, no one should be refused work, fired, demoted, paid less, or otherwise negatively treated because of their race, religion, sex, age, or disability. AMVETS, a group that supports American veterans, would like to add military personnel to this list.

Stewart Hickey, the executive director of AMVETS, thinks that veterans are discriminated against for a couple different reasons. Those currently serving in the military may be passed over for a job because the company is concerned that they will be called back to active duty, leaving the position to be filled in the interim. And employers may be hesitant to hire veterans who have already served because they are afraid the applicants suffer from post-traumatic stress disorder or a traumatic brain injury.

There is legislation in place that makes it illegal for a company to refuse someone employment because he or she is a veteran. It is called the Uniformed Services Employment and Reemployment Rights Act (USERRA) and it was enacted in 1994. The U.S. Office of Special Counsel summarizes the act as "a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other "uniformed services:" (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service."

Ironically, the federal government has been accused of disobeying this law by firing service members who have been gone on active duty, and rescinding job offers to those serving who did not return from active duty soon enough. In 2011, over 250 cases of the USERRA being violated were brought against the federal government.
So will adding veterans as a protected class under Title VII help the situation? Mr. Hickey can't say for sure, but his hope is that it will. He thinks that giving veterans the protected class status will at least make employers think extra hard before they turn down a vet for a new job or terminate one from an existing position. Even those who may not knowingly discriminate against veterans now may be more apt to hire a veteran if they become protected by workplace discrimination laws.

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March 26, 2012

Can a Potential Employer Ask a Kentucky Job Applicant for Social Media Passwords?

1362248_businessman_with_the_notebook_3.jpgFacebook has become an international phenomenon with millions of users logged in around the globe. Some people have reconnected after years of no communication, and others have forged new relationships through shared friends and interests. As a result of all of this sharing of information, numerous privacy issues have arisen.

One of the latest issues is whether or not employers should have access to employees' Facebook accounts. While a potential employer may see it as an opportunity to get to know an applicant on a more personal level, it could also lead to a potentially illegal situation.

When applying for a job, there are numerous subjects that should not be addressed by an employer. Applicants should not be asked about their age, marital status, number of children, religious background, or ethnicity. Denying someone a position based on any of these factors would most likely constitute employment discrimination, which is illegal under Title VII of the Civil Rights Act of 1964. Therefore, these topics should not even be brought up by a potential employer.

When an individual uses Facebook, it is under the assumption that the information posted will be viewed by friends and family members, not employers. So the subjects listed above that should not be discussed at a job interview will most likely appear on a Facebook page. Even if this information is not explicitly listed on the person's profile page, it can normally be gleaned from reading posts and viewing photos.

Some prospective employers try to get around the sticky subject of asking for an applicant's user name and password. After the ACLU questioned the Maryland Department of Public Safety's practice of requiring user names and passwords from applicants, the agency changed its policy to requiring the applicant to log into social media sites during the interview. While this gets away from requesting passwords that people should not be asked to share, it still gives the agency access to information that may be covered under Title VII. Other companies have asked applicants to "friend" human resource managers, which also gives them access to the same information that could lead to discriminatory decision-making in the hiring process.

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March 23, 2012

Plumbers Union Settles Racial Discrimination Lawsuit

Unions were created to protect the rights of American workers from those higher up who may not have their best interests in mind. Sometimes, however, the unions themselves can make bad decisions that end up negatively affecting a worker they are supposed to protect.

In 2008, Jon Stokes, who is African-American, was allegedly wrongfully terminated his job as shop steward at a construction site. He was immediately replaced with a white employee who had been on the job for only two months by the local plumber and pipefitters union. Stokes allegedly contacted union leaders regarding his termination being fueled by racism, but an investigation was never done. Because of this, the Division of Civil Rights filed a lawsuit.

An agent for the union said Stokes was terminated because people had complained he was too slow in filling their requests for materials, but the workers who had supposedly complained were never identified. Also, Stokes noted that he was never made aware of any issues before his termination.

Earlier this month, the union agreed to settle this matter with the Civil Rights Division. Several changes will be implemented because of this settlement. Union leaders will be required to attend training regarding civil rights law at the state and federal level. Policies that were previously lacking will be established, including how discrimination complaints should be reported and investigated. Anti-discrimination and harassment policies will be created and given to all union members.

While this settlement does not mean the union admitted any wrongdoing, the director of the Civil Rights Division was satisfied, saying "This is a fair resolution of some troubling allegations...It is vital that all employers strive to create a healthy workplace climate, and that every employee -- from the home office to the job site -- knows and understands the law."

Jon Stokes has filed a personal lawsuit against the union and it is still pending.

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March 18, 2012

Did Religious Discrimination Lead to Wrongful Termination at NASA?

When one hears the name NASA, rocket ships and space exploration come to mind, not religion. But one man is suing a California division of NASA for alleged religious discrimination. David Coppedge was a computer specialist that worked on a NASA mission exploring Saturn and its moons. Once a team lead on the project, he claims he was demoted and eventually terminated because of his religious beliefs. Mr. Coppedge believes in intelligent design, a theory stating that something must have driven evolution.

NASA claims the 15-year project was winding down at the time of his termination and that 264 other employees were also let go at the same time because of budget cuts. Mr. Coppedge claims that his speaking to his co-workers about intelligent design led to his termination. Two other items that may have contributed was his desire to have the holiday party called a "Christmas party" and his backing of a proposed measure to have marriage only pertain to heterosexual couples.

Religion is one of many types of discrimination that are illegal under Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission (EEOC), "Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs." The unfavorable treatment can be in found in several forms, including refusal to hire an applicant, a negative difference in pay or benefits, being passed over for promotions, or wrongful termination.

Under Title VII, employers are required to make reasonable accommodations for employees' religious beliefs. This may include allowing certain types of dress or appearance required by an individual's religion or not requiring someone to attend functions that go against their beliefs. Unreasonable accommodations are those that would be extremely costly to the employer, would put other employees at risk for harm, or would impede the rights of others.

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March 10, 2012

Paula Deen Sued for Sexual Harassment and Hostile Work Environment

Paula Deen continues to be in the news, this time as a defendant in a lawsuit for sexual harassment and creating a hostile work environment. The popular TV show host co-owns a restaurant with her brother, Bubba Hiers, in Savannah. Uncle Bubba's is the name of the restaurant where the alleged harassment took place.

Lisa Jackson, the general manager of Uncle Bubba's for five years, has filed a lawsuit claiming she was sexually harassed and subjected to a hostile work environment while working at the restaurant. The sexual harassment allegedly occurred in several different ways. According to the lawsuit, Mr. Hiers frequently made sexual advances toward Ms. Jackson, watched pornography in their shared office, and said things that were very offensive. Ms. Jackson's claim also states that when Ms. Deen promoted her to general manager of the restaurant, she said she was "going to do something I've never done. I'm going to put a woman in a man's job."

Sexual harassment can take different forms. Sometimes it is sexual in nature, such as when Mr. Hiers allegedly watched pornography in their office and made sexual advances towards Ms. Jackson. It can also occur when derogatory remarks are made about a person's gender in general, which is what Ms. Deen supposedly did when she said she was going to give a man's job to a woman. Ms. Jackson also claims she was paid less than her male counterparts in the restaurant industry. These types of harassment can make an employee feel uncomfortable in the workplace and result in a hostile work environment. In many cases, if the sexual advances are turned down, or if the employee reports the sexual harassment, the harasser may retaliate by wrongfully terminating an employee. Ms. Jackson is not claiming wrongful termination because she voluntarily left the job based on the advice of a physician who said working at the restaurant was detrimental to her mental well-being.

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March 3, 2012

Two Companies Settle Employment Discrimination Lawsuits Regarding Workers with Epilepsy

Epilepsy affects approximately two million Americans to varying degrees. It is a neurological condition that causes people to have seizures. Some can control their epilepsy with medication and avoid having seizures for years, while others continue to have seizures even while medicated. Special caution may need to be taken in certain situations by those who have frequent seizures, but no one should have to give up living or working because of this condition. Two companies recently settled lawsuits that addressed the need to make accommodations for potential and current employees with this particular disability.

A Missouri man applied at Tyson Foods, a meat processing company, for a maintenance position. The man had epilepsy that he had kept under control with medication for 12 years. During this period he had even been employed twice by Tyson. When he applied the third time however, he was denied a position without even being examined by a physician because of a new medical evaluation process put in place by Tyson. The applicant felt he had been discriminated against because of his disability and contacted the Equal Employment Opportunity Commission (EEOC), which agreed with him.

The EEOC filed an employment discrimination lawsuit against Tyson on the man's behalf in May 2010. Tyson and the EEOC settled the lawsuit, with Tyson agreeing to pay the man $35,000 and promising to make some changes to their policies. Now, if an applicant at Tyson fails a medical assessment, he can have second and third assessments done at his own expense. Tyson will also provide training for those doing the assessments, will post notices regarding discrimination for its employees, and will report to the EEOC regarding its compliance.

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February 25, 2012

Age Discrimination Cases at Indiana Universities would be Fewer if Age Limit was Abolished

Indiana University - Purdue University Fort Worth (IPFW) is set to lose Michael Wartell as Chancellor due to a university retirement policy. The current policy requires high-level administrators to retire at the age of 65. However, many are questioning the usefulness of this type of policy.

The Age Discrimination in Employment Act (ADEA) was enacted in 1967 to protect workers over the age of forty from being discriminated against in decisions such as hiring, firing, and promotions. However, an exception was made for high level executives in both the public and private sectors that allowed employers to set mandatory retirement ages for those individuals at the top. Most U.S. colleges took advantage of this exception, setting mandatory retirement ages for both faculty members and high-level administrators. In 1994, schools were forbidden by federal law from making faculty members retire at a certain age. And over the years, most universities have done away with forced retirement of administrators as well. But many universities in Indiana are still enforcing this policy.

Last year, Indiana University faced an age discrimination lawsuit from a 64-year-old dean who was denied a three-year position. Even though a large majority of the faculty wanted her to be reappointed, the vice chancellor had to turn her down because she would have hit the mandatory retirement age of 65 during her term. The EEOC agreed with the dean and determined that the policy did not apply to her because she would not have received a large enough retirement benefit to qualify for the policy. The university settled with her and allowed her to stay on in a different position. But she remains disappointed in the university and its decision to retain the mandatory retirement requirement. "I can tell you that having no choice but to step down from an office wherein I was viewed as being successful by my colleagues and to which I was otherwise entitled to retain by virtue of an excellent review felt discounting and humiliating," she said.

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February 17, 2012

How the Worker Adjustment and Retraining Notification Act affects Kentucky Workers

The Worker Adjustment and Retraining Notification Act (WARN) is a federal law that was passed in 1988 and became effective in 1989. According to the Department of Labor, the act "protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs." While this quote gives a general description of what the act does, more information is needed to understand which employers are required to follow the WARN Act and which employees may benefit from its protection.

As the quote says, a company must employ at least 100 workers for the WARN Act to apply. All 100 workers must have been employed by the company for at least six months and average at least 20 work hours per week. For example, a company that employs 65 people year-round and hires another 40 seasonal workers for three months would not be governed by the WARN Act.

Even companies that have 100 qualifying employees may be exempt in certain circumstances. If a company is trying to find investors to help keep the company afloat, and giving a 60-day notice to its employees would hinder this activity, the company may not be required to give the notice. If Mother Nature causes the company to be shut down due to a disaster such as a tornado, hurricane, or flood, the notice is not required because the closure could not be anticipated. In a similar vein, if a company suddenly loses a main source of income because of a cancelled contract or other unforeseeable issue, a 60-day notice may not be possible. In these cases, the companies are still required to provide notice of the layoffs or closure as soon as possible, and they must provide a viable reason why the full 60-day notice could not be given.

The next part of the act to consider is which employees are covered. In general, anyone working for a company that fits the criteria above would be covered, including salaried and hourly employees, managers and supervisors. There are exceptions though. Anyone working for a branch of the government - federal, state, or local - is exempt. Those who have accepted a position knowing it is temporary and those who are hired as self-employed contractors do not qualify. Individuals who are involved in a labor dispute lock-out or who participate in a strike are also not entitled to the 60-day notice.

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February 8, 2012

Alleged Wage Law Violations and Discrimination at Restaurant Chain

1151761_waiter.jpgAnother restaurant chain is coming under fire for potential discrimination against a protected class of employees. Last year, Texas Roadhouse Restaurants, which is based in Louisville Kentucky, was sued for allegedly discriminating against employees and potential employees that were over the age of 40. The lawsuit claims that interviewers remarked about applicants' ages during interviews, and that older employees were not allowed to be hosts or work at the bar. Instead they were relegated to the back of the restaurant or the kitchen. Even the people pictured in the training materials were obviously individuals well under 40.

Darden Restaurants owns several popular chains throughout the United States, including LongHorn Steakhouse, Red Lobster, and Olive Garden. The company employs over 180,000 people. Employees of Capital Grille, another of Darden's chains, have filed a lawsuit claiming racial discrimination and violation of federal wage laws. Similar to the Texas Roadhouse suit, employees of a protected class - in this case minorities - claim they are being discriminated against by being given less desirable positions in the restaurants and are being denied the chance to advance in the company. Some experts think the plaintiffs will have a hard time proving this part of the case because the CEO of the company is African American and about 30 percent of the managers-in-training that have moved up from other roles are minorities.

The other issue in the case is the alleged violation of federal wage laws. Servers in restaurants are generally exempt from minimum wage laws, which means they can be paid less than minimum wage, because they earn tips that in theory make up the difference in pay. According to the lawsuit against Darden, the company currently requires servers to share a portion of their tips with hourly employees, whose hourly rates are higher than the servers because they have to be paid at least minimum wage. Restaurant employees also claim that they have to do prep work before their shifts begin and after they end and they are not being compensated for it.

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February 1, 2012

Can You Claim Age Discrimination if Your Replacement is Older than You?

In 2003, Gloria Garcia's employment as a school secretary was terminated by the principal of a school in the Mission school district. She had been employed by the school for 17 years and was 48 years old. In a regular story about age discrimination, the next bit of information would be how much younger her replacement was. But this case is unusual in that Ms. Garcia's replacement was actually three years older.

The school district has tried twice to have the case thrown out, partly because they claim schools cannot be sued for discrimination, and partly because age appears to be a non-issue in the firing of Ms. Garcia since her replacement was older. The school appeals took so much time that Ms. Garcia will not get to personally hear the final verdict in the case because she passed away in 2010. But the decision will still be important to other employees who are over 40, including two women who were let go by the same school district.

Ms. Garcia's attorney contends that the school district can definitely be sued for discrimination because it is regulated by individuals elected in to office, it runs on money collected from taxpayers, and it provides a public service. She also explains how an age discrimination claim could be valid when the new employee is older than the one terminated. One scenario would be that the supervisor responsible for the firing did not hire the replacement. So in this case it is possible that the principal had an issue with Ms. Garcia's age and wrongfully terminated her, but it was left up to human resources to find a replacement, which they did. The individual just happened to be older. Another possibility brought up by one of the chief justices reviewing the case is that an attorney for the school district realized they could be in trouble for firing Ms. Garcia based on her age, so he recommended that she be replaced by an older person.

These questions could be answered through depositions and documents, if the school system would stop filing appeals so discovery could continue. Ms. Garcia's attorney admits that if it is proven that the same principal that fired Ms. Garcia also hired her older replacement, then she would most likely no longer have a case. But for now, the questions still remain.

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January 26, 2012

Wrongful Termination of Firefighter a Result of Gender Discrimination

1018822_firefighters.jpgBrittany McMahon wanted to be a firefighter, so she joined the Carlsbad fire department to complete her year-long probationary period in January, 2010. According to Ms. McMahon, she completed all tasks assigned to her and passed her physical tests, some of which she believes were made even harder for her than her male counterparts.

While living at the station on her work days, she was allegedly subjected to sexual harassment, such as being pulled toward a male firefighter by her belt loops and being offered assistance with showering. Online comments about female toiletries appearing in a unisex bathroom at a fire station added to the hostile work environment, Ms. McMahon claimed.

According to the lawsuit, around the end of her probationary period, Ms. McMahon was told she could either resign voluntarily or be terminated by the department, the latter of which would hurt her chances of finding a position elsewhere. Ms. McMahon felt she had no other choice than to resign. Her wrongful termination lawsuit, which is supposedly asking for about $2 million in damages, states that she was discriminated against because she was a woman trying to get into a fire department that has always been all men.

This case illustrates the different types of sexual harassment and gender discrimination that can occur. The other firefighters commenting about the station bathroom being filled with "tampons...hair accessories" and other female items is gender discrimination in which the complainant's entire gender is being insulted. A sexually charged hostile work environment was created when the male firefighters allegedly made comments about helping her in the shower and grabbed her by her pants. It does not appear that Ms. McMahon was terminated because she turned down the sexual advances of a supervisor or co-worker, which would be considered quid pro quo sexual harassment. Rather, the complaint states she was forced to leave her job simply because she was a woman.

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