Kentucky Employment Lawyer Blog

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

2012-02-01T20:23:58Z

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.

]]> The Texas Supreme Court has heard arguments from both sides in January and will make a ruling. There is no time frame for when the members of the court will make their decision. Both employers and employees will be interested to hear the judges' opinion.

This scenario shows that even a case that appears hopeless to some may have merit in the eyes of another. When faced with employment issues, it is important to contact a qualified Kentucky employment attorney to help review the facts and determine if a case exists. The attorneys of Miller & Falkner have over eight years of experience in handling all types of employment cases.

Sources:

Texas Supreme Court ponders age bias lawsuit: Replacement worker was older than fired worker; statesman.com;Chuck Lindell; January 13, 2012

Wrongful Termination of Firefighter a Result of Gender Discrimination

2012-01-26T15:27:02Z

Brittany 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.

]]> Many women serve as firefighters, both as volunteers and in paid positions. In a study done in the 1990s, 88 percent of women firefighters said they had been subjected to some type of sexual harassment or gender discrimination, and only one-third of those said they received a positive result when they complained about it. Almost the same number of women who complained said they were retaliated against instead.

Does this mean women should stop trying to be firefighters? No, it does not. As long as she is able to carry out the duties required of her without putting her life or the lives of others in jeopardy, a woman should be allowed to hold the same position as a man in any field. If you have been discriminated against because of your gender, male or female, or have been sexually harassed on the job, it is important to contact a Kentucky employment attorney to discuss what your rights are and what action should be taken to remedy the situation. The attorneys at Miller & Falkner are experienced in handling wrongful termination, sexual harassment and other employment discrimination cases, and look forward to speaking with you.

Sources:

Carlsbad's first female firefighter to sue city; U-T San Diego News; Hailey Persinger; January 24, 2012

Issues Concerning Women & Firefighting: Sexual Harassment Survey: Women Firefighters' Experiences; Women in Fire & Emergency Services

Louisville, Kentucky Employee Settles Whistleblower Suit

2012-01-21T20:27:02Z

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.

]]> At the end of December, Metro Public Works settled with Mr. Garrett for $315,000. The types of damages covered by the settlement amount were not disclosed. Because Mr. Garrett had already been reimbursed for wages and benefits lost while he was suspended, the award most likely included compensation for intangible items such as emotional distress. Mr. Garrett is happy to be back at work for the city of Louisville and is satisfied with the resolution.

This case highlights the importance of finding an attorney that has your best interest at heart and is willing to fight for your rights. Mr. Garrett's attorney agreed that he had been punished by the department for reporting what he had witnessed and filed suit. He also ensured that Mr. Garrett was saved the humiliation of being subjected to an unwarranted psychiatric evaluation. The Kentucky employment attorneys at Miller & Falkner have over eight years of experience in helping individuals who have issues with their employers.

Sources:

Louisville city employee settles work complaint for $315,000; The Courier-Journal; Chris Quay; January 20, 2012

City worker who filed whistleblower lawsuit seeks order barring psychiatric evaluation; The Courier-Journal; Dan Klepal; July 22, 2010

Kentucky Police Chief Pursuing Wrongful Termination Lawsuit

2012-01-11T19:21:13Z

Former 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.

]]> Being fired from a job can leave a person shocked and emotionally shaken. The Indiana and Kentucky employment law attorneys at Miller & Falkner have helped countless individuals through this difficult time. They offer this list of actions to take if you feel you have been wrongfully terminated:

Don't retaliate against your employer. After being demoted or terminated, feelings are often very raw and many employees feel hurt or betrayed. While these feelings are very valid, acting on these emotions and lashing out at your former employer will not help.
Contact an employment law attorney at Miller & Falkner for advice regarding your potential claim.
If you have an employment contract, locate a copy of this contract to share with your attorney.
Inquire about the reasons for your termination and who decided to terminate you.
Through your attorney, request and negotiate a severance package.
Follow all oral agreements regarding your termination and severance with a written confirmation.
Do not allow yourself to be intimidated. Do not agree to sign documents until you have had the opportunity to thoroughly review them.
Return any and all company property in your possession to your employer and follow any other common post-employment procedures.

While these steps are a helpful guideline, be sure to work with an attorney to ensure you are taking the right approach. Having an experienced third party involved will help to separate the emotional aspect of the situation from the business portion that needs to be handled professionally and legally.

Sources:

Harrodsburg police chief sues city over impending termination; kentucky.com; Greg Kocher; December 22, 2011

Former Harrodsburg police chief may proceed with lawsuit, judge says; kentucky.com; Greg Kocher; January 10, 2012

Former police chief sues Harrodsburg; Central Kentucky News; Todd Kleffman; December 21, 2011

Cancer Patient Receives Settlement in Disability Discrimination Lawsuit against Walmart

2012-01-07T01:49:00Z

Charles 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."

]]> The Americans with Disabilities Act protects individuals with disabilities from being discriminated against in many areas, including in the workplace. As this case shows, an individual may become protected by this act after he has been employed by a company for an extended period of time. Indiana and Kentucky employment attorneys are able to assist those who are disabled when they are applying for employment as well as those whose status changes after they have been employed for a period of time. If you are experiencing employment discrimination of any kind, contact an attorney at Miller & Falkner to assist you.

Sources:

Wal-Mart to Pay $275,000 to Former Employee Fired after Cancer Surgery; EEOC; December 16, 2011

Whistle-blowing Case filed by Two Terminated Employees in Kentucky

2011-12-26T23:07:04Z

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.

]]> The next section of the Kentucky Whistleblower Act puts the initial burden of proof on the employee by stating he must prove that the termination or other negative personnel action was a direct result of his whistleblowing. After that is proven, the employer must then defend its actions and prove the personnel action was not based on the whistleblowing action. In a lawsuit, the employee can request damages including lost wages, future lost wages and compensation for emotional distress. Punitive damages may also be awarded, which serve to punish the defendant and deter them from acting in a similar manner in the future. Ms. Mills and Ms. Kavanaugh are seeking past and future lost wages as well as compensation for their emotional distress.

Most places of employment are run according to the law and strive to provide a safe work environment for their employees and safe products for the consumer. Unfortunately, breakdowns in these categories do occur and it is imperative that employees feel able to report potentially illegal or unsafe situations to the proper authorities, especially if their superiors have been notified and have failed to act. If employees feel they have been retaliated against, they have only 90 days after the incident to file a lawsuit, so they need to contact a Kentucky employment attorney such as Charles Miller or Rheanne Falkner to discuss their case.

Sources:

Whistle-Blowers in Corydon, KY Claim Wrongful Termination by City; surfky.com; Ben Adams; December 15, 2011

Two ex-Corydon, Ky., workers file lawsuit; Courier Press; Victoria Grabner; December 13, 2011

http://www.lrc.state.ky.us/krs/061-00/102.PDF

Kentucky Employees to Receive Overtime Pay Due from Sullivan University

2011-12-15T14:58:30Z

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.

]]> Federal and state wage and hour laws are in place to make sure Kentucky employees are fairly compensated for their time and efforts on the job. If you are not receiving some of the pay or benefits you have earned, please contact a Kentucky employment attorney to see what steps can be taken to remedy the situation. Oftentimes, an employer and employee can resolve a situation with a little outside guidance, but sometimes legal action needs to be taken.

Sources:

Sullivan says it settles lawsuit; The Courier-Journal; Chris Kenning; December 8, 2011

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

2011-12-08T20:22:32Z

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.

]]> While this issue is starting to be discussed again now, it will not be resolved any time soon. Supporters of the bill hope to pass as much of it as possible before February 5, 2012. While the date may mean nothing to some, the majority of Indiana residents know it as the day the Superbowl will be played in Indianapolis, and legislators do not want union protests interfering with the game. Chances are good that the "right-to-work" debate will still be going strong at election time in November next year.

Indiana employment lawyers Charles Miller and Rheanne Falkner are following this debate closely. If you would like more information on this topic or you have another employment matter you wish to discuss, please contact the law firm of Miller & Falkner.

Sources:

Indiana panel recommends right-to-work legislation; Associated Press; October 26, 2011

Indiana Republicans aim to get right to work on 'right to work'; indystar.com; Mary Beth Schneider; November 22, 2011

Proposed Changes to Age Discrimination Law Approved by EEOC

2011-12-01T17:58:29Z

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.

]]> Not all of these points would need to be addressed to determine whether the RFOA claim is viable or not. The importance of each point would be determined on a case-by-case basis.

What would this new regulation mean to an employee? If implemented, this amendment would require the employer to prove that the alleged discriminatory actions were not intentionally discriminatory, and were based on factors other than age, as proven by the points above. It would also encourage employers to review their policies in regards to workers over the age of 40 and make changes as necessary to ensure that age discrimination, intentional or not, does not occur in their places of business. The Kentucky employment attorneys at Miller & Falkner have helped countless employees with discrimination claims over the past eight years. Please contact them if you would like further information on this topic or need help with another employment matter.

Sources:

Amended Regulations on Age Discrimination in Employment Suits Move Closer to Implementation; martindale.com; Paul A. Patten; November 23, 2011

Background Information for EEOC Notice of Proposed Rulemaking on the Definition of "Reasonable Factors Other Than Age" Under the Age Discrimination in Employment Act of 1967

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

2011-11-21T14:02:46Z

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."

]]> While employers may complain that making special arrangements for an employee with disabilities is costly, studies show it really is not. The President's Committee's Job Accommodation Network report shows that most individuals with disabilities do not even require special accommodations. Accommodations for a little over 50 percent of disabled employees that require them cost under $500. Disabled workers do not require higher worker's compensation rates and do not use any more sick time than someone without disabilities. If you have a disability and are looking for employment, know your rights before attending the interview. If you are currently employed and think you have been terminated or denied benefits or promotion because of a disability, contact the Kentucky disability discrimination lawyers at Miller & Falkner. They can review your case and determine the best course of action.

Sources:

EEOC Sues Kohl's Department Stores For Disability Discrimination; EEOC; August 23, 2011

Kentucky Waffle House Agrees To Settle EEOC Disability Discrimination Suit; EEOC; September 23, 2010

Would You Fire Someone Over a $1.39-Bag of Chips?; Inc.com; Courtney Rubin; September 12, 2011

Family Medical Leave Act

2011-11-15T14:50:32Z

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.

]]> When a woman becomes pregnant and delivers a baby, she is entitled to 12 weeks of unpaid leave after the child is born. In the case of Laura Makowski v Smith Amundsen, Ms. Makowski claimed she was wrongfully terminated while on leave after the birth of her child in December 2007. While she was out, the firm contacted her in February 2008 and informed her that her position had been eliminated. While the firm stated she was terminated because of restructuring, the head of human resources told her she was terminated because she became pregnant and took medical leave, and her position was filled by another employee. She also told Ms. Makowski that others had been terminated for taking medical leave. The U.S. District Court ruled against Ms. Makowski because the comments made by the head of human resources were not admissible since she was not directly involved with the termination. Without this information, there was no correlation between her taking medical leave and being terminated. The Appeals Court disagreed with the District Court and ruled the comments from the head of human resources were admissible because she was consulted in the decision and was directed to contact outside counsel before the termination was made. The case was sent back to District Court to be argued and tried with the testimony of the HR head admitted as evidence.

William Shaffer was allegedly terminated from his position as director of leadership communications at the American Medical Association after telling his employer he would be having knee surgery and would need four to six weeks of leave to recover. Before his employer knew of his upcoming leave, another employee was set to be terminated instead and Mr. Shaffer was to maintain his position. An email from his supervisor to the chief marketing officer after Mr. Shaffer's request for leave stated that he should be let go instead of the other employee since he was going to take leave anyway. The Appeals Court ruled last month that Mr. Shaffer's case should go to trial, stating "The FMLA forbids an employer from interfering with an employee's right to take leave and return to his job and also from retaliating against an employee who claims benefits under the statute."

In the above cases, FMLA protected an individual dealing with a health issue, a new mother caring for her new baby, and an employee facing surgery and a substantial recovery. If you have been in one of these situations or another one in which your job should have been protected and you were wrongfully terminated, the Kentucky employment attorneys at Miller & Falkner can assist you by reviewing your case and filing a claim.

Sources:

Ruling in wrongful termination suit favors former Thunderbird chef; The Desert Sun; Blake Herzog; November 8, 2011

Appeals court allows FMLA suit against American Medical Association; Business Insurance; Judy Greenwald; October 31, 2011

Makowski v Smith Amundsen; United States Court of Appeals, Seventh Circuit; November 9, 2011

Reverse Discrimination in the Workplace

2011-11-10T14:58:17Z

When the Civil Rights Act of 1964 was enacted, it was meant to protect minority groups from discrimination by the majority. People of different races, genders, religions, and national origins were given the right to vote and were more protected in the workplace. The act has provided more equality for these groups for over 40 years. Sometimes, however, members of the majority discover they need protection as well.

On November 1, 2011, a jury ruled that Michael Clum, a white male, had been discriminated against after an altercation between him and a co-worker who was African-American. Mr. Clum and his co-worker were having a dispute when unfriendly words were exchanged. Mr. Clum's employer, Jackson National Life Insurance, determined his final response was violent in nature and terminated him. Mr. Clum filed a reverse discrimination suit because he was terminated and his co-worker was not reprimanded. The jury agreed that he had been discriminated against in his termination and awarded him over $1 million for lost wages and emotional distress.

In another recent case, the Equal Employment Opportunity Commission (EEOC) filed suit against Hamilton Growers, Inc. in Georgia on behalf of 19 workers who claim they were discriminated against because of their national origin. The 19 workers are Americans. According to the suit, Hamilton Growers, Inc. favored workers from Mexico over the American workers by giving them better job assignments that allowed them to earn more pay and by firing almost all of the American workers in the 2009 and 2010 growing seasons. The suit asks for lost wages, compensatory damages, and punitive damages. This case illustrates that Title VII, the portion of the Civil Rights Act of 1964 that specifically discusses workplace discrimination, protects people of all national origins, even Americans who are the majority. This case was filed in October, 2011 and is still pending.

Reverse religious discrimination has also been the subject of lawsuits. In Noyes v Kelly Services, Ms. Noyes claimed she was discriminated against because she was not a member of the same religious organization as her supervisor. When a manager position became available at Kelly Services, the plaintiff was passed over for another individual who had less experience and education than she did. Ms. Noyes filed suit, claiming the other woman was promoted because she was a member of Fellowship of Friends, the same organization to which her supervisor belonged. She also noted that four of the last five promotions had been given to members of the same religious group. The jury agreed with Ms. Noyes, awarding $647,000 in compensatory damages and $5.9 million in punitive damages.

]]> One facet of reverse discrimination that is not currently covered under federal law is reverse age discrimination. The Age Discrimination in Employment Act of 1967 (ADEA) only protects workers over the age of 40. A few states, including Alaska, Maryland, New York and New Jersey, have reverse discrimination laws that protect employees over 18 from being discriminated against because of their youth. Kentucky does not currently have a reverse age discrimination law. With today's weak economy, recent graduates and other young workers are having a hard time finding employment, and they may run a greater risk of losing their jobs if their employers decide to make budget-cutting layoffs based on seniority. The economy is also causing older workers to delay retiring, which is making it more difficult for young workers to find employment. These factors will likely lead to more young people feeling discriminated against and may ultimately lead to more state laws to protect younger workers or even changes to federal age discrimination laws.

Regardless of whether you are a member of a minority group or part of the majority, issues can arise that make working uncomfortable, challenging, or impossible. Workplace discrimination and wrongful termination can affect anyone. The Kentucky employment attorneys at Miller & Falkner have been helping people with their workplace issues for over eight years. If you feel you have been discriminated against at work or wrongfully terminated, please contact them to determine your best course of action.

Sources:

Young workers say their age holds them back; USA Today; Stephanie Armour

Laingsburg man awarded $1 million in suit against Jackson National Life; Lansing State Journal; Laura Misjak; November 2, 2011

Hamilton Growers Sued By EEOC For Discrimination Against American Workers; EEOC; October 5, 2011

Reverse Religious Discrimination Nets Worker $6.5 Million; hr.blr.com; August 12, 2008

Sexual Harassment in Fitness Clubs

2011-10-31T19:13:46Z

Fitness club employees spend their days looking at and trying to improve human bodies. Clothing made for fitness and to accentuate the body is worn. In this type of workplace, sexual harassment is bound to occur.

Earlier this month, Jonathan Prince, a personal trainer at 24 Hour Fitness in Sherman Oaks, California, filed a lawsuit against his female manager. The suit alleges that the manager hit on Mr. Prince by asking him out and sending him suggestive text messages. When Mr. Prince asked her to stop she gave him negative reviews in retaliation, which hurt his chances for receiving a promotion or bonus. Mr. Prince is seeking over $50,000 in damages. This case highlights the fact that the victim of sexual harassment is not always female.

In 2004, the same club, 24 Hour Fitness, was ordered to pay $2.4 million to Cynthia Malek, a former employee who was fired because she complained that male co-workers were sexually harassing her. The company attempted to demote her from a management position to a sales position. Ms. Malek refused to accept the demotion and was fired. According to the arbitrator's comments, several of the criticisms that led to the attempted demotion of Ms. Malek came from the men she claimed had sexually harassed her. Even after damages were awarded to her, Ms. Malek continued to fight to have the ruling made public. She felt that the 24 Hour Fitness company as a whole tolerated sexual harassment and she wanted others to be aware of her situation. A year later, the ruling was publicized.

Not all cases of sexual harassment in fitness clubs are filed by employees that work directly with patrons. In August, 2011, Allstar Fitness settled a sexual harassment and http://www.millerfalknerlaw.com/lawyer-attorney-1400888.html by agreeing to pay $150,000 to a janitorial worker who was allegedly sexually assaulted numerous times by her supervisor. The supervisor told her to keep quiet about it or she would lose her job. When she asked him to stop, he fired her the next day. The claim filed by the Equal Employment Opportunity Commission (EEOC) on her behalf claims that the club's upper management never investigated her allegations. The settlement also requires the company to establish a complaint procedure and policies regarding sexual harassment and to provide employee training. Michael Baldonado, District Director of EEOC stated, "No one should be forced to choose between personal dignity and the paycheck that feeds your family."

]]> Mr. Prince's case and the janitorial worker's case both involve "quid pro quo" harassment. This type of harassment occurs when an individual's job, salary, or promotion are contingent upon them performing sexual favors. Refusing sexual advances in this type of case often results in loss of hours, wages, or promotion, or the employee may be terminated.

Another type of sexual harassment occurs when an employee is made uncomfortable in the workplace by inappropriate touching, jokes or pictures of a sexual nature, or sexual comments. This is called "hostile work environment" sexual harassment. This type of harassment is evident in Ms. Malek's case where male co-workers made suggestive comments to her and were not disciplined.

Just because either type of harassment was tolerated by the victim, even for an extended period of time, that does not mean he or she does not have a case. It is important to contact an attorney, such as the Kentucky sexual harassment attorneys at Miller & Falkner, to determine if sexual harassment has occurred.

Sources:

24 Hour Fitness faces sexual harassment lawsuit; Los Angeles Times; October 18, 2011

Health club pays $2.4 million in sexual harassment case: Ex-employee wins award and right to publicize ruling; Demian Bulwa; June 9, 2004

EEOC Files Sexual Harassment Lawsuit On Behalf Of Fitness Club Employee; Compliance Training Group; August 31, 2011

Twenty Years Later, Workplace Sexual Harassment and Anita Hill Still Linked

2011-10-27T13:42:52Z

It was 20 years ago this month that Anita Hill testified against U.S. Supreme Court nominee Clarence Thomas regarding sexual harassment. Her accusations were part of testimony subpoenaed during a Senate investigation into Clarence Thomas. At the time of the alleged harassment, Clarence Thomas was her boss at the U.S. Department of Education and, ironically, the Equal Employment Opportunity Commission (EEOC). Ms. Hill's disappointment in Clarence Thomas eventually being confirmed by the Supreme Court was in part a result of feeling "...they didn't understand the relevance of my testimony to Thomas' respect for the law. He did these things while he was in charge of enforcing sexual harassment laws."

But the confirmation of Clarence Thomas did not stop Ms. Hill's testimony from positively affecting sexual harassment. In 1980, only one sexual harassment complaint was filed with the EEOC. After Ms. Hill's testimony in 1991, 6870 complaints were filed. That number almost doubled again in 1992, and the complaints continued to increase for years, only tapering off more recently. What was once a subject too embarrassing to discuss became common conversation in workplaces across the nation. Women who previously kept quiet for fear of losing their jobs or other retaliation began seeking justice.

Sexual harassment was included in Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and retaliation in the workplace. Years later, the Civil Rights Act of 1991 was passed, strengthening sexual harassment and all other discrimination laws by allowing a complainant to seek emotional distress damages and have a jury trial.

What constitutes sexual harassment? The EEOC website says:

"Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer."

]]> If sexual harassment has occurred, there are several types of damages that can be awarded. Lost wages, medical bills, and compensation for emotional distress are typical damages in any discrimination or harassment case. Attorneys' fees can be recovered, and the plaintiff may be entitled to pre-judgment interest on lost wages, which can be a substantial amount if her salary was high and the case does not go to trial right away. If the harassment was particularly harsh or malicious, punitive damages may be awarded as well.

Not all bad behavior by employers or co-workers constitutes sexual harassment. A boss who is rude and overbearing may be challenging to work with and annoying, but if he acts this way toward all of his employees, there may not be a harassment case, just a serious character flaw. If someone is singled out because of his or her sex, the victim may be eligible for compensation. It is important to contact an employment law firm such as Miller & Falkner to determine if your case is valid.

Sources:

Anita Hill: 20 Years of "Reimagine;" The Courier-Journal; Cassandra Spratling; October 18, 2011

Sexual Harassment; U.S. Equal Employment Opportunity Commission

One Kentucky Employment Lawsuit Ends and Another Begins

2011-10-18T19:13:01Z

In October 2009, Dawn Simpson filed a lawsuit against the city of Louisville after allegedly being sexually harassed and retaliated against by her former employer at Louisville Metro Animal Services. According to the suit, the former director of Metro Animal Services began sexually harassing Ms. Simpson shortly after she began working there in 2007. After Ms. Simpson complained to the second person in command, the suit alleges she was retaliated against by not being allowed to hire employees, make decisions on animal euthanasia, or utilize shelter volunteer coordinators. Her suit with the city of Louisville was settled this year for $287,000. Both men involved in the suit have resigned from their positions.

Ms. Simpson's claim stemmed from her employer touching her stomach and making inappropriate comments about her physical appearance. Other examples of sexual harassment that create a hostile work environment include crude jokes or sexually explicit photos or pictures being visible in the workplace. Another type of sexual harassment is quid pro quo sexual harassment. In this type of harassment, an employee must provide sexual favors to maintain or improve his or her position, benefits, or salary. Employees often believe that if they perform the sexual favors they cannot file a claim, but this is not the case. If the employee felt they had to do it, a sexual harassment lawsuit can be filed.

In a new workplace lawsuit in Lexington, Kentucky, Cynthia Elliot has filed a claim against the Appalachian Research and Defense Fund of Kentucky (AppalReD) alleging she was discriminated against because of her race and gender. Ms. Elliott, who is black, also felt she was retaliated against for firing white employees when she was terminated in January. The AppalReD board states she was fired after an audit showed the agency had spent $1 million more than its budget over four years and because funds were allegedly missing.

]]> Damages are being sought by Ms. Elliott for lost wages, emotional distress and depression, among other reasons. Damages of this type are considered compensatory because they are meant to "compensate" for a person's loss. Punitive damages, which have not been mentioned in this case, are awarded to the plaintiff as a means to punish the defendant and to discourage similar behavior in the future. Another demand often included in harassment and discrimination cases is mandatory training for supervisors and employees regarding these issues.

Although these cases are different, they both highlight situations in which an employee felt they were treated unfairly and retaliated against by an employer. If you are in this type of situation and want more information regarding workplace harassment or discrimination, contact a Kentucky employment attorney. The attorneys at Miller & Falkner have over eight years of experience in assisting people with issues that arise in the workplace.

Sources:

Animal Service Suit is Settled for $287,000; The Courier-Journal; Dan Klepal; October 13, 2011

Former Head of Eastern Kentucky Legal Aid Agency Alleges Discrimination; Kentucky.com; Bill Estep; October 13, 2011