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 " 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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January 21, 2012

Louisville, Kentucky Employee Settles Whistleblower Suit

In an attempt to make the city of Louisville, Kentucky greener and save money, officials announced in September 2009 that Metro would implement more energy-efficient measures. Eric Garrett, a Public Works employee was involved in the effort, writing hundreds of work orders for updating or replacing equipment. Upon noticing that some of the recommended work was not being done, Mr. Garrett contacted Louisville's government ethics tip line and Councilman Hal Heiner in 2010. About two weeks later, he was suspended from work, initially for three days, then indefinitely, because a co-worker had supposedly filed a complaint against him.

Mr. Garrett felt that the suspension coming so soon after his reporting of alleged mismanagement by the department was more than coincidence. The attorney he hired agreed, and he filed a whistleblower retaliation suit on Mr. Garrett's behalf. The state of Kentucky has a whistleblower law that pertains to employees of the state and its "political subdivisions." A 2010 Kentucky Supreme Court case decided that city governments are "political subdivisions," so Mr. Garrett would be covered under this law. The law prohibits employers from retaliating against employees that report inappropriate behavior to the proper authorities. In this case, Metro Public Works allegedly retaliated against Mr. Garrett by suspending him supposedly for another reason no more than two weeks after he reported what he felt was mismanagement by them. The law also states that employees are not required to notify their employers that they intend to make a report. The law does not allow employees to make false accusations or divulge confidential corporate information. If this occurs, legal action can be taken by the employer.

The city of Louisville investigated the complaint against Mr. Garrett and determined there was not enough evidence to show he did anything wrong. Mr. Garrett was given back pay and benefits for the time he was suspended. He was also allowed to go back to work, but was told he would have to submit to a psychiatric evaluation to confirm he was fit to return. His attorney fought the evaluation requirement and won, stating his client had been suspended, not on medical leave. Mr. Garrett returned to work, but the whistleblower suit remained.

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January 11, 2012

Kentucky Police Chief Pursuing Wrongful Termination Lawsuit

1066864_police_cruiser.jpgFormer Harrodsburg, Kentucky Police Chief, Rodney Harlow, was terminated by the city commission at the end of 2011. Mr. Harlow filed a wrongful termination lawsuit against the city's mayor and commissioners. He also filed a motion for temporary injunction, which the judge denied earlier this week. The temporary injunction would have allowed Mr. Harlow to maintain his position as police chief during the litigation, but because of the judge's denial, he has been removed, pending the outcome of the suit.

Mr. Harlow's lawsuit is based largely on a Kentucky state law called the policeman's bill of rights. This law requires officers to be notified of complaints and entitles them to a hearing and an opportunity to appeal a termination related to a specific charge. Allegedly, complaints were made to a couple of the commissioners, but the information was never relayed to Mr. Harlow, so he was never given the opportunity to respond to them. Counsel for the city contends that Mr. Harlow was not covered by this law because he was a part-time employee and the law only applies to full-time employees. Mr. Harlow's attorney believes he is covered because the law pertains to any police department that receives assistance from the Kentucky Law Enforcement Foundation Program, which Harrodsburg does. Also, several employees have stated that Mr. Harlow worked 40-60 hours per week, which constitutes full-time hours.

Both compensatory and punitive damages have been requested in the lawsuit. Compensatory damages cover losses not associated with pay. In Mr. Harlow's case the compensatory damages are being sought for the negative effects this firing may have on his professional reputation. Punitive damages are meant to punish the defendants and hopefully deter them from acting in the same manner in the future. Punitive damages can only be awarded if it is determined the defendants acted maliciously, which Mr. Harlow alleges both the mayor and the commissioners did in this case. He is also seeking lost wages and wishes to be reinstated to his position as police chief.

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January 6, 2012

Cancer Patient Receives Settlement in Disability Discrimination Lawsuit against Walmart

1125238_forklift_1.jpgCharles Goods was hired by Walmart in Greenville Tennessee in 1997 to work at a warehouse as a forklift operator. After being diagnosed with thyroid cancer, he had surgery, during which some of the nerves in his right shoulder were severed. This resulted in permanent loss of strength and feeling in his right arm, making it difficult if not impossible to lift with that arm. Mr. Goods returned to work after the surgery and continued to successfully fulfill his job requirements until 2008. That year, a supervisor asked him to fill in during a co-worker's 20-minute break. The co-worker's job required lifting and Mr. Goods informed the supervisor that he could not comply.

At the supervisor's direction, he filed a request for reasonable accommodation, which informs the employer of the disability and is supposed to initiate a conversation between the employer and employee regarding the nature of the disability and what steps need to be taken to accommodate the employee. Mr. Goods included the fact that he had been successfully fulfilling his job requirements for the duration of his employment, including the three years after the surgery that caused his condition. According to the complaint filed by the Equal Employment Opportunity Commission (EEOC), Walmart did not discuss anything with Mr. Goods, but rather placed him on leave for 90 days and was ultimately told to find another position that did not require manual lifting. Six months later, after filing a discrimination charge, he was terminated by Walmart.

According to the Americans with Disabilities Act of 1990 and the amendments passed in 2008 in the Americans with Disabilities Amendments Act, it is unlawful to deny an employee reasonable accommodation and to retaliate against an employee for filing a discrimination lawsuit. According to the EEOC, Walmart failed to comply with both of these items, and filed a civil suit in 2010 on behalf of Mr. Goods.

In December 2011, Walmart settled with Mr. Goods. He was awarded $110,000 for wages lost in 2009 and 2010 and $165,000 in compensatory damages. Compensatory damages in this case most likely included additional loss of income and emotional distress. This type of damages is meant only to return the plaintiff to the place he was before the incident, not to punish the defendant. According the EECO, the following terms were also included in the settlement:

"In addition to the monetary relief, the 18-month consent decree settling the suit enjoins Wal-Mart's distribution center #6039 from further failing to provide reasonable accommodation, absent undue hardship, or following proper procedures for handling such requests per the ADA and ADAAA. In addition, the decree requires that Wal-Mart provide anti-disability discrimination training to its management staff; maintain records of any accommodation requests and furnish them to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC's contact information. Wal-Mart has revised and amended its accommodation policy, which it distributed to all employees, to address accommodation issues."

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December 26, 2011

Whistle-blowing Case filed by Two Terminated Employees in Kentucky

Two women formerly employed by the city of Corydon in Kentucky, Gloria Mills and Jenna Kavanaugh, have filed a whistleblower suit against the city and its mayor, Larry Thurby. The suit alleges that they were wrongfully terminated for questioning some discrepancies they found in the city's accounting. When they brought the matter to Mayor Thurby's attention, he allegedly told them to keep quiet about what they had found. Neither of the women felt comfortable with keeping the information to themselves, so they notified Kentucky State Police who investigated the matter. Both women were terminated in July, supposedly for claiming they worked more hours than they did.

A state auditor's report in February showed that $81,000 of city money was missing. The Corydon city sewer clerk was terminated and indicted in September for theft of over $10,000. She faces up to five to ten years in prison if convicted. It would appear that Ms. Mills' and Ms. Kavanaugh's feelings that something illegal was occurring were accurate.

The Kentucky Whistleblower Act is labeled as KRS 61.102 and states "No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of...any...appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence."

What this means is that an employee should be able to report to an appropriate party anything that seems illegal or dangerous at the place of employment without the threat of being fired or somehow retaliated against by the employer. The act goes on to say that it does not allow employees to leave their place of employment during work without following the proper protocol and that employers still have the right to request information regarding what the employees have reported. Employees that knowingly report false or confidential information can face disciplinary action from their employer.

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December 15, 2011

Kentucky Employees to Receive Overtime Pay Due from Sullivan University

In a dispute that dates back to 1994, Kentucky employees of the Sullivan University System have been asking for overtime wages they feel they were denied. The employees are current and past high school representatives and admissions officers that present information regarding the university system to high school students. The U.S. Department of Labor was first alerted to the issue in 1994, but there was no legal action taken at the time. The Labor Department began reviewing the case again in 2007 and a lawsuit was filed in 2010. Sullivan has agreed to settle with about 150 employees by paying them overtime owed from 2007 to the present.

The Fair Labor Standards Act, or FLSA, addresses minimum wage and overtime standards for most private and public workers in the United States. It is enforced by the U.S. Department of Labor. According to FLSA, employees that work over 40 hours during a workweek are entitled to one-and-a-half times their pay for every extra hour worked. Workweeks can start on any day of the week, but must consist of seven consecutive days. The hours of two or more workweeks cannot be averaged to avoid overtime pay even if the employee is paid on a bi-weekly basis. The Sullivan employees worked an average of 2.2 hours of overtime each week, so they should have received one-and-a-half times their pay for those extra hours.

Sullivan University Systems claimed the employees involved in the lawsuit were exempt, which means they were not covered by the overtime portion of FLSA. Most companies that make less than $500,000 per year are not required to pay overtime, but schools of all types, including "institutions of higher education" must pay overtime regardless of their annual income. Certain types of employees are exempt from receiving overtime according to FLSA, a complete copy of which can be found on the U.S. Department of Labor website. Examples include executives, outside salespeople, certain professionals, newspaper delivery people, babysitters, workers on small farms, and people employed at sea. An attorney for Sullivan said the employees were treated as professionals, and were paid well, but the school agreed to re-classify them as non-exempt as part of the settlement. They will now be required to clock in and out and their base pay will be reduced to compensate for the overtime they receive, making their earnings the same.

The employees involved in the suit also claimed that proper records of their hours were not kept. According to Kentucky wage and hour laws,

Every employer subject to the provisions of the Kentucky Minimum Wage Law shall make and preserve records containing the following information:
(a) Name, address, and Social Security Number of each employee;
(b) Hours worked each day and each week by each employee;
(c) Regular hourly rate of pay;
(d) Overtime hourly rate of pay for hours in excess of forty hours in a workweek;
(e) Additions to cash wages at cost, or deductions (meals, board, lodging, etc.) from stipulated wages in the amount deducted, or at cost of the item for which deductions are made;
(f) Total wages paid for each workweek and date of payment.
These records do not need to be kept in a specific format, but employers must retain them for at least one year. Requiring the employees to clock in and out will at least provide Sullivan an accurate record of the hours worked by each employee.

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December 8, 2011

How Passage of a "Right-to-Work" Bill Would Affect Indiana Employees

As the Indiana legislature enters its final session for 2011, Republicans vowed to make their "right-to-work" bill the main focus of the session. This topic is very controversial and caused Democrats to leave the state for five weeks earlier this year to avoid voting on the issue. Both parties have differing views on whether or not it would be beneficial to Indiana employees to have their state become the twenty-third "right-to-work" state.

"Right-to-work" laws are passed on a state-per-state basis and allow individuals to be employed by a company that has union workers without joining the union. Members can opt out of paying membership dues but still reap the benefits of being part of a union. This option was given to each state in the U.S. by a portion the Taft-Hartley Act that essentially gives the states the power to decide whether employers can require employees to financially support the union. Non "right-to-work" states, such as Kentucky and Indiana can have so-called "union shops," or companies that require their employees to be union members and pay dues. Recently hired employees that are not union members have a set period of time to become members; otherwise they may forfeit their employment.

Supporters of the legislation believe potential Indiana jobs are being lost because employers prefer basing their businesses in "right-to-work" states that give employees the choice of joining unions. Gov. Mitch Daniels stated "We miss about a third of the opportunities because businesses want a state where this protection is provided to workers. In this tough economy, the state needs every edge it can get." Some employees object to paying dues to a union that may support political agendas that conflict with their own personal political beliefs. Others may not wish to join a union for personal reasons. In non "right-to-work" states, potential employees are denied this choice if they consider jobs at companies that require union membership and union financial support.

Opponents of "right-to-work" laws often call them "right-to-work-for-less" laws because they feel a union is weakened when all employees are not required to participate or contribute. Employees that do not pay dues are still allowed to use union services, including legal representation, which many feel takes away money that should be used to represent dues-paying union members seeking higher wages and improved workplace safety.

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December 1, 2011

Proposed Changes to Age Discrimination Law Approved by EEOC

On November 16, 2011 the Equal Employment Opportunity Commission (EEOC) approved proposed changes to the 1967 Age Discrimination in Employment Act (ADEA), which protects employees over the age of 40. The proposed changes will now be sent to the Office of Management and Budget (OMB) at the White House. If the OMB approves the changes, they will be returned to the EEOC for final approval. The proposed changes are in response to recent Supreme Court cases regarding disparate impact claims and "reasonable factors other than age" (RFOA) defenses.

Disparate impact occurs when an employer's actions affect a protected class inadvertently. These claims frequently arise from staff-reduction cuts or the implementation of new compensation programs. While the discrimination is not intentional, a protected group is negatively affected by the decision. In response to disparate impact claims related to age, employers often use the "reasonable factors other than age" defense, stating the changes made were not based on age, but were made for other reasons. In this proposed amendment, the EEOC gives guidelines regarding whether or not a factor is reasonable and if the factor was based on something other than age.

To test reasonableness, the EEOC lists the following factors:

  • whether the employment practice and the manner of its implementation are common business practices;
  • the extent to which the factor is related to the employer's stated business goal;
  • the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
  • the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
  • the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
  • whether other options were available and the reasons the employer selected the option it did.

Whether or not a decision was based on something other than age can be checked by the following:

  • the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
  • the extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
  • the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

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November 21, 2011

Disability Discrimination in the Workplace Leads to Termination, Hostile Work Environment

In previous articles, various forms of employment discrimination that are covered under Title VII of the Civil Rights Act of 1964 have been discussed. One that has not been covered is disability discrimination. The Americans with Disabilities Act of 1990 (ADA) was also enacted to protect employees and potential employees from discrimination based on a physical or mental disability. Employers with more than 15 employees are required to give potential employees with disabilities the same opportunity to obtain a position as those without a disability. Once employed with a company, disabled employees should enjoy the same benefits, such as equal pay, opportunities for advancement, and job selection. They should feel welcome at work and have certain accommodations made to enable them to do the job if necessary.

These laws do not mean that a disabled individual has to be considered for every type of position. If a disability would put the employee, co-workers or the general public in harm's way, he or she is not entitled to the same consideration. The individual must also have the qualifications, experience and skills necessary for the job.

In a Kentucky disability discrimination case last year, an employee at a Waffle House in Mount Vernon was wrongfully terminated after she informed her employer she had Hepatitis C. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the owner of the Waffle House and reached a settlement out of court. The settlement included back pay for the terminated employee and required the employer to provide anti-discrimination training and to refrain from future discrimination or retaliation.

More recent cases involve individuals who were discriminated against because of their diabetes. In August of this year, the EEOC filed a lawsuit on behalf of Pamela Manning, an employee of Kohl's , who had diabetes. Ms. Manning's set work schedule suddenly changed to an irregular one. She began suffering from complications from her diabetes because of the irregular schedule and asked to be returned to a set schedule. Kohl's refused, even after seeing a note from Ms. Manning's doctor. Because of her health, she was forced to quit. According to the EEOC press release, the suit "seeks monetary relief for Manning, the adoption of strong policies and procedures to remedy and prevent disability discrimination by Kohl's, training on discrimination for its managers and employees, and more." An 18-year employee of Walgreens who had diabetes was fired in California because she ate a bag of chips when she felt her sugar levels dropping. She paid for the chips as soon as she was able, but was still terminated. According to the ADA, employers are required to make reasonable accommodations for those with disabilities, and allowing an employee to eat a bag chips to avoid a medical emergency would seem like a "reasonable accommodation."

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November 15, 2011

Family Medical Leave Act

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years, and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

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