Kentucky Employment Lawyer Blog

Indiana Restaurant Settles Pregnancy Discrimination Lawsuit

2013-04-26T14:04:36Z

Workplace discrimination takes many forms, including age, race, gender, and disability. All of these types of discrimination are illegal under federal law. A more recent type of job discrimination that has surfaced is pregnancy discrimination.

The Pregnancy Discrimination Act (PDA) was passed in 1978 and amends Title VII of the Civil Rights Act of 1964 to add protection for women in the workforce who are pregnant or have recently had a child. It pertains to those women who are currently employed and those who are seeking employment. In a recent Indiana employment discrimination case, a local restaurant was accused of discriminating against both a current employee and an applicant because they were pregnant.

The first woman in the lawsuit was a server at the restaurant. In August 2010, she told her supervisor that she was pregnant, which she claims was required by the restaurant of all female employees. Her hours were allegedly cut immediately to about 50% of what she was working before she notified them of her pregnancy, and in January 2011 she was terminated. The second plaintiff in the lawsuit was a woman who claimed she applied for a job at the same restaurant in October 2010 but was denied employment because she was pregnant at the time.

In April, 2013, the restaurant settled the lawsuit with both women. The first woman who had been an actual employee of the restaurant received $18,000; the applicant received $8,000. In settling the case, the restaurant did not admit guilt, the owner stated they settled to avoid a costly trial. As a result of the settlement, the restaurant is no longer allowed to ask applicants if they are pregnant or require employees to inform their supervisors if they become pregnant. They also must have a written policy against sex discrimination, and specifically pregnancy discrimination, and they are required to have a way to handle these types of complaints in the future. If an employee requires a revised schedule due to pregnancy, her request must be accommodated.

]]> Another situation that arises in employment situations with pregnant women is when they become temporarily disabled due to pregnancy-related medical conditions. According to the PDA, these women must be accommodated in the same manner as someone else with a non-pregnancy-related temporary disability. This may include a change in duties, a different schedule, or paid or unpaid disability leave, depending on the company's temporary disability policy.

Companies discriminate against pregnant women for many reasons. Some may fear that they may not be able to perform their regular duties. Some may worry that once the child is born the woman may not come back to work at all, or she may be distracted by the responsibilities that come with having a new baby. Others may think pregnant women are not as attractive to their customers as those who are not. Whatever the reasoning, pregnancy discrimination is against the law. If you have been discriminated against at work, contact an Indiana or Kentucky discrimination attorney.

Source:

Nick's Patio settles lawsuit that alleged pregnancy discrimination; South Bend Tribune; Madeline Buckley; April 10, 2013

Woman Can Continue Indiana Discrimination Lawsuit against Catholic Diocese

2013-03-22T19:59:51Z

In April, 2011, an Indiana woman's teaching contract was not renewed by the Catholic school where she had taught for eight years. The reason allegedly given to her was that she had undergone in vitro fertility treatments, which is against the doctrine of the Catholic Church, and that as a teacher at the school she was required to abide by that doctrine. She filed a lawsuit against the diocese claiming gender and disability discrimination.

This case is similar to one filed in Missouri. In that case, a woman claimed she was discriminated against because of her disability when she was wrongfully terminated by a Lutheran school. The school said the lawsuit should be dismissed because of ministerial exception, which is meant to keep the separation of church and state by allowing religious institutions to make employment decisions without regard to federal discrimination laws. In some situations, this separation makes sense. For instance, a Catholic church shouldn't be required to consider a Jewish rabbi as a potential leader so that they are not guilty of religious discrimination. But who this exception pertains to outside of direct ministry is still unclear, despite a Supreme Court's ruling in January 2013. The ruling agreed with the lower court's decision in the Missouri case that allowed the Lutheran church to terminate the teacher, but it basically said every case of this kind should be considered individually.

Based on the Supreme Court's decision in the Missouri case, the Catholic diocese in Indiana filed a motion to dismiss the case against them, stating that Title VII of the Civil Rights Act and the Americans with Disabilities Act did not apply in this situation because the school is a religious institution, and therefore is exempt. The district court judge hearing the case denied their motion, allowing the case to go forward.

]]> The Indiana teacher is suing for both gender and disability discrimination. The gender discrimination claim is fairly clear because the school allegedly terminated her because of her in vitro treatments, something that only pertains to women. The disability claim may seem far-fetched unless one is familiar with discrimination laws. Under the Americans with Disabilities Act (ADA), infertility is considered a disability, so someone dealing with infertility issues is protected from discriminatory acts by the ADA. As a result, this case will not likely be decided on whether or not she was disabled. The question will be if her position as a teacher was ministerial enough to remove her discrimination protection.

As Kentucky and Indiana employment lawyers, Charles Miller and Rheanne Falkner will continue to follow this case so that they will be able to help any clients who find themselves in a similar situation. If you think you have been discriminated against at work for any reason, contact an Indiana or Kentucky workplace discrimination lawyer as soon as possible to discuss your situation.

Sources:

Herx Lawsuit: A Matter of Church v. State; indiananewscenter.com; Rachel Martin, et al.; April 26, 2012

Judge: Indiana teacher can sue diocese over in vitro fertilization case; Associated Press; Charles Wilson; March 12, 2013

"Open Secret" Causes Workplace Discrimination against Nurses, Other Medical Professionals

2013-03-01T20:57:13Z

Those in the medical field are required by an ethics code to treat any patient, regardless of race or gender. But apparently the same does not hold true for patients not discriminating against medical professionals based on these same criteria. Often called an "open secret" in the medical world, patients sometimes insist that they only be attended to by nurses or doctors of a certain race or gender, and even in this day and age, their requests are sometimes granted.

This obvious employment discrimination does not sit well with some, including two nurses in Michigan who have filed a race discrimination lawsuit against the hospital where they work. According to the lawsuit, a male white supremacist told the hospital that he didn't want any African-American nurses tending to his newborn. In response to his request, a note was allegedly put on the infant's chart that read "No African-American nurse to take care of baby." Even after the note was taken off the chart, no minority nurses were assigned to care for the infant for at least a month.

While their actions do appear to be discriminatory, supervisors at the Michigan hospital may have felt they were doing the right thing for everyone involved. They may have thought they were protecting their nurses from a potentially violent situation by giving in to the father's demands, while keeping the father happy at the same time. However, the fact remains that if they were singling out employees based on their race and treating them differently, that is discrimination. As discussed in a previous article, even if the employer thinks they are acting in the employee's best interest, he or she cannot treat an employee differently because of their race, age, gender, disability, or religion.

]]> This type of discrimination also puts medical professionals in a difficult position. If patients require immediate medical attention, but they have requested that no one of a certain race or gender be allowed to treat them, should a prohibited doctor or nurse just ignore the medical emergency? If they do help the patient, can they be fired for disobeying orders? If they don't, could they be faced with a medical malpractice or wrongful death lawsuit? Just because a patient doesn't want to be treated by a particular person doesn't mean the family would agree if the patient died because of lack of treatment. Then the hospital and the doctor or nurse who didn't take action could be held liable.

No one should ever be denied the opportunity to do their job, especially in the medical field, which is constantly wanting for qualified caring individuals. This "open secret" is one that needs to be silenced. If you have experienced discrimination in your place of employment, whether it is a hospital or elsewhere, for whatever reason, contact a Kentucky employment law attorney at the offices of Miller & Falkner to assist you.

Source:

Some patients won't see nurses of different race; Associated Press; Jeff Karoub; February 22, 2013

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

2013-02-22T17:54:24Z

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

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

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

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

]]> There are certain situations in which an applicant's credit report should be checked. For instance, someone looking to work for a bank or other financial institution should probably be able to handle their personal finances before being entrusted with someone else's. But in many jobs, employees do not have any contact with money at all, so how they handle their finances is a moot point.

Nebraska is currently trying to pass a bill that would prevent employers from using credit checks during job interviews, except in situations where the applicants would be handling money. Proponents for the bill are running into the same arguments that those in Kentucky most likely did. There are very few states that have successfully passed laws banning pre-employment credit checks, including Hawaii and Oregon. Potential employers may still request this information in these states in the hopes that the applicants are not aware that it is illegal.

The Kentucky employment law attorneys at Miller & Falkner hope that one day this unfair practice will become illegal in Kentucky. In the meantime, they continue to help Kentucky and Indiana employees that are unfairly discriminated against and those who have been wrongfully terminated.

Source:

Bill would prevent job discrimination based on credit history; McCook Daily Gazette; Joseph Moore; February 12, 2013

What Constitutes Sexual Harassment?

2013-02-12T20:17:54Z

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

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

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

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

]]> So even if he did not mean for his touches to be sexual, that is how the women perceived them, and that is what matters. The same goes for sending lewd pictures around the office or posting questionable jokes in a visible place at work. Maybe the poster does not find them offensive or sexual, but if others do, then it can be considered sexual harassment.

In a further twist to the sexual harassment case discussed above, the police captain was demoted. He is now threatening to sue the department, saying his accusers were retaliating against him for trying to minimize the overuse of sick time and overtime.

Whatever the outcome of this case, if he was inappropriately touching anyone at work, especially those under this supervision, it was right for the victims to lodge a complaint. The same goes for any Kentucky employee, male or female. Anyone who thinks they have been a victim of sexual harassment should contact a Kentucky sexual harassment attorney such as Charles Miller or Rheanne Falkner to discuss their situation and determine if their case has merit.

Source:

Is 'inappropriate touching' sexual harassment? Experts weigh in on Portland police chief's view; The Oregonian; Maxine Bernstein; February 7, 2013

Louisville Kentucky Landmark Restaurant Closes Down Amid Unfair Pay Practices Claims

2013-01-24T20:53:05Z

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

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

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

]]> But to require someone who is barely scraping by to bring $100 every time he or she reported to work seems a bit extreme. And according to Kentucky employment law, restaurants are not allowed to require servers to share tips with anyone. Further complications may have arisen if a server had already shared tips with the other wait staff and then the credit card charges to cover the tip never came through. Situations like this involving potential Kentucky labor law violations are investigated by the Kentucky Labor Cabinet. But because a formal complaint has not been filed with the Cabinet, no investigation is being conducted so far.

Kentucky employment laws regarding wages and tips are difficult to understand and can change. That is why it is important to contact a Kentucky employment law attorney if you think you are being unfairly compensated or that you have been denied any type of pay to which you are entitled. The attorneys at Miller & Falkner have several years of experience in helping hard-working Kentuckians receive the compensation they deserve.

Source:

Lynn's Paradise Cafe tipping policy may violate Kentucky law, labor lawyers say; The Courier-Journal; Chris Otts; January 19, 2013

Can an Employer Discriminate Against You for Your Own Good?

2013-01-14T19:41:41Z

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

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

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

]]> The most recent case was filed on January 10, 2013 by the EEOC against a Maryland HVAC company. According to the press release, the employee had worked for the company for six years when he had to have heart surgery in September 2012. About four months later, his doctor cleared him to return to work. Instead of welcoming him back, the company fired him, saying he was "unable to return to [the] job as a Sheet Metal Mechanic due to [an] ongoing medical condition." When the employee applied for an open position with the company over a year later, the company refused to hire him even though he was qualified for the job. As a result, the EEOC's lawsuit also claims that the worker wasn't re-hired in retaliation for filing his disability discrimination complaint.

In all of the above cases, it appears on the surface that the employers were acting in the best interests of the employees when they refused to let them work in a certain environment. But according to federal laws and decisions made in previous cases by the Supreme Court, employers are not allowed to make this type of call, even if they are genuinely concerned about their employees' safety. If you think you have been fired or passed over for a job because of discrimination, even if it was purportedly in your best interest, contact an experienced Kentucky employment law attorney to determine what action should be taken.

Sources:

EEOC Sues Fidelity Engineering Corporation for Disability Discrimination and Retaliation; EEOC; January 10, 2013

EEOC Sues Staffmark and Sony for Disability Discrimination; EEOC; December 12, 2012

Owner of Comfort Inn and Suites in Taylor, Mich. Sued by EEOC for Pregnancy Discrimination; EEOC; November 13, 2012

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

2013-01-09T22:06:44Z

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

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

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

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

]]> The court's decision doesn't mean the employee was definitely wrongfully terminated. But it does allow for the possibility that she was. Because she was employed in a children's hospital, the hospital may argue that her refusal to be vaccinated put the other employees and general public at risk, which is one reason an employer can legally refuse to make special accommodations for an employee. However, even if this argument holds up in this case, it may not in a different situation that does not occur in a healthcare setting. The Kentucky employment discrimination attorneys at Miller & Falkner will be keeping a close eye on this case. If you are a Kentucky or Indiana employee that has been discriminated against at work, contact our office to schedule a consultation.

Sources:

Opinion and Order Re: Sakile S. Chenzira v Cincinnati Children's Hospital Medical Center; United States District Court, Southern District of Ohio Western Division; December 27, 2012

Title VII of the Civil Rights Act of 1964; EEOC

Kentucky Union Workers to Be Reinstated in Jobs after Collusion Ruling

2013-01-03T18:40:19Z

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

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

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

]]> There are pros and cons to being unionized. Union members can benefit from more standardized pay rates and increases, more seniority rights, and better protection against discrimination or wrongful termination. If a union member wants to file an unfair labor charge, he or she can do that for free by contacting their local NLRB office. Unfortunately, employees who feel they have been harassed or terminated because of their union affiliation cannot file a claim in court. They also can only be awarded back pay and be reinstated to their job, whereas those not represented by a union can request and be awarded larger monetary amounts in the form of compensatory damages.

The Kentucky employment law attorneys at Miller & Falkner can help union members with issues such as collective bargaining, grievance or interest arbitration, and injunctions or temporary restraining orders.

Sources:

Dis-Union 'They have turned their backs on us' WHAS; Joe Arnold; August 10, 2012

Fired Teamsters Win Jobs after Illegal Company-Union Collusion; Labor Notes; Ken Paff; December 31, 2012

Wrongful Termination Suit Filed against JCPS in Louisville Kentucky

2012-12-18T18:36:04Z

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

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

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

]]> Wrongful termination is broad category covering anyone who feels they have been unfairly or illegally terminated from their job. Because Kentucky and Indiana are at-will states, employers have the ability to fire most anyone at any time for no reason at all. However, certain protections exist for certain employees, such as employment contracts that guarantee an employee a job for a set length of time, or union rules that protect workers from being fired for no reason. Another type of wrongful termination occurs when someone is discriminated against because of their race, age, religion, disability, or gender. If this type of workplace discrimination results in someone be terminated, an employer may be liable for lost wages, punitive damages, and compensation to the employee for emotional or mental distress caused by the firing.

Only an experienced Kentucky employment law attorney can help you determine whether or not you may have a valid wrongful termination case against an employer. Charles Miller and Rheanne Falkner have been helping Indiana and Kentucky employees with their work issues for over eight years.

Source:

Former Louisville athlete sues JCPS over his firing; The Courier-Journal; Jason Riley; November 29, 2012

Employment Discrimination Lawsuits Filed Against Kentucky-Based UPS and FedEx

2012-12-11T22:02:22Z

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

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

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

]]> Both of these individuals appear to have been discriminated against at work, which directly violates Title VII of the Civil Rights Act of 1964. Under this law, employees or potential employees cannot be discriminated against because of their religion or national origin - which pertains to the above two cases - as well as race and gender. Employees that have been discriminated against can contact a personal injury attorney in their state or their local EEOC representative. If an amicable resolution does not occur, a discrimination lawsuit can be filed to request job reinstatement and/or monetary compensation to cover lost income and benefits, and emotional distress caused by the employment discrimination. Punitive damages may also be requested to punish the defendant for its illegal actions and deter similar action in the future. The Kentucky employment law attorneys at Miller and Falkner have helped numerous Kentucky and Indiana workers receive the justice they deserved after being discriminated against at work.

Sources:

UPS sued by EEOC for Religious Discrimination; EEOC; December 3, 2012

FedEx driver fired over accent? ABC15; November 29, 2012

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

2012-12-06T17:12:15Z

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

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

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

]]> What might be the repercussions of the Supreme Court's decision? Employers and other opponents of the broader definition say it will open employers up to all kinds of liability and will make it hard to determine who might be considered a supervisor and who might not. In their eyes, the narrower definition allows employers to provide the proper training to the right people to help avoid discrimination, harassment, and hostile work environments. Proponents of the broader definition say the narrower definition allows people who have some power over other workers to discriminate and harass them without any punishment.

It will be interesting to see if the Supreme Court provides a clear-cut answer to what constitutes a supervisor, or if their ruling covers just this particular case and does not offer guidance for similar cases, which is what happened when they ruled on a ministerial exception case. Whatever happens, the Kentucky employment law attorneys at Miller & Falkner firmly believe that no employee should be subjected to discrimination or harassment, and they will continue to work hard for their clients who have been put in this type of situation.

Sources:

Supreme Court To Look At Who Is A 'Supervisor' In Harassment Cases; NPR; Nina Totenberg; November 26, 2012

Questions and answers for small business employers on employer liability for harassment by supervisors; EEOC

New Whistleblower Legislation Instituted by Federal Government Good for Kentucky Employees

2012-11-29T18:56:49Z

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

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

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

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

]]> Obviously, this new act is good news for those Kentucky workers who are employed by the government. But how does it benefit the rest of us? According to Tom Devine, legal director for the Government Accountability Project, "This reform took 13 years to pass because it can make so much difference against fraud, waste and abuse." Federal money saved by these whistleblowers is ultimately money that taxpayers save, so this new protection is good news for all Kentuckians who pay taxes.

Sources:

Whistleblower protections head to Obama; Arizona Daily Independent; November 17, 2012

Obama signs whistleblower protection law; Associated Press; November 28, 2012

Indiana Teacher Claims Age Discrimination at Age 80

2012-11-19T14:19:55Z

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

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

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

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

]]> The Age Discrimination in Employment Act (ADEA), which was passed in 1967, makes discriminating against anyone over the age of 40 unlawful. Job applicants cannot be asked how old they are, nor can they be asked less direct questions in an attempt to discover their age, such as when they graduated from college or how old their children are. Once employed, workers over 40 cannot be passed over for promotions or better shifts because of their age if they are performing at the same level as their younger counterparts. They also cannot be terminated and replaced by someone younger than they are unless the employer can prove there was a valid reason for firing them.

Whether you are 41 or 80 or somewhere in between, if you think you have been discriminated against at work, you should contact a Kentucky employment law attorney to discuss your situation. If they think you have a case, they may file an age discrimination lawsuit against your employer. The complaint may ask for compensation for lost income and stress; or if you have been terminated, it may ask that you be reinstated to your old position if you wish to return to work there.

Source:

Teacher, 80, files age discrimination claim against South Bend schools; South Bend Tribune; Kim Kilbride; October 23, 2012

Electronic Workplace Harassment Does Not Always Happen at the Workplace

2012-11-12T17:03:50Z

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

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

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

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

]]> This electronic workplace discrimination or harassment may occur at work or somewhere else. It can happen through a company's network or on a personal cell phone. Regardless of how or where it occurs, if the negative behavior is coming from a supervisor or co-worker and the employer does not take action to correct the situation, the employer could be held liable.

Kentucky employees are protected by federal and state laws against workplace discrimination and harassment. If you feel you have been a victim, an experienced Kentucky employment law attorney such as Charles Miller or Rheanne Falkner can help you determine what action needs to be taken to receive the compensation you may deserve.

Source:

Social media takes workplace harassment to new levels; HR.BLR.com; Joan Farrell; November 7, 2012