Articles Posted in Employment Law

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Vanderbilt University Law School recently conducted a study examining the relationship between weight class and jobs. Minnesota Public Radio reported on the study, which showed that heavier women are more likely to work lower-compensated jobs as they gain weight. The reason for this phenomenon is not actually clear, but it is evident that perceived beauty or attractiveness is related to better pay for both sexes.

keep-the-weight-away-291512-m.jpgThe study’s author has suggested that a sixth category should be added to the prohibited discrimination under the 1964 Civil Rights Act. She believes that the research study is highly indicative of discrimination against obese people.

Current Kentucky Protections Against Discrimination
The Kentucky Civil Rights Act prohibits public employers from discriminating against employees or prospective employees based on age over 40, disability, smoking status, sex, national origin, religion, color, or race. Kentucky also has two other statutes that protect individuals from being discriminated against on the basis of their HIV or AIDS status or black lung disease.
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The Eighth Circuit decided an employment discrimination case earlier this month brought by an employee of a railroad carrier. Apparently, the plaintiff in this case had a significant history of good work performance, but at some point he violated a serious safety rule. He agreed to a 30-day suspension and a period of probation. At some point during his probation, the plaintiff was viewed walking in the tracks, which is another serious safety violation.

fall-railroad-1433372-2-m.jpgThe supervisors who witnessed the above violation began an investigation. A hearing was held, and it was decided that the plaintiff would be terminated from his position. The plaintiff believes that his termination was based on the fact that he made two previous complaints and not because of the alleged rule violation. The lower court ruled in favor of the employer, and the Eighth Circuit agreed, finding that there was no unlawful retaliation and the plaintiff would have been discharged even without the rule violation.

What is Retaliation?

The Equal Employment Opportunity Commission (EEOC) explains that employers cannot harass, terminate, or demote an employee or retaliate against him or her for filing a claim for discrimination, participating in a discrimination proceeding, or other similar activities. Generally, a retaliation suit is brought when an employer participates in an adverse action against a qualified employee because he or she engaged in a constitutionally protected activity.
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Last week, the Supreme Court of Washington State ruled in favor of Clark College in an age discrimination suit brought against the college by a professor employed by the college. The Court ruled that the professor did not meet the requirements necessary to establish discrimination.

doodled-desks-2-1193228-m.jpgThe Background of the Case
In 1994, the plaintiff started teaching English as an adjunct professor at the college. After about nine years, she applied for a tenured position. In addition to the plaintiff’s application, Clark College received 151 other applications, and it subsequently screened 13 of the candidates during a teaching demonstration. They then recommended the four screened individuals to the president and vice-president of the department.

The plaintiff was 55 at the time of the interview and was one of the four candidates chosen to be recommended to the president. The college did not hire the plaintiff and instead hired two other individuals who were younger than 40 years old.
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Late last week, the Sixth Circuit decided an employment discrimination lawsuit in favor of the employer in Loyd v. Saint Joseph Mercy Oakland et al.. Apparently, a 52-year-old African-American woman was terminated from her 25-year position as a security guard at a Michigan hospital. The woman first brought charges with her union and then filed charges with the Equal Employment Opportunity Commission (EEOC). The employee alleged that she was discriminated against and terminated because of her sex, race, and age. The hospital argued that she was not fired for any of those reasons, but rather because of a series of violations of the hospital’s policies and practices.

guard-1063331-m.jpgBackground
The plaintiff, Anita Loyd, was a security guard for 25 years with the hospital. During her tenure, she was disciplined several times for various infractions. One of these infractions included a 2001 incident when she failed to help restrain a patient. She was subsequently written up.

In 2011, Ms. Loyd was called to a room where a psychiatric patient was residing. The patient was very agitated and was acting in a violent manner. The hospital contends that Ms. Loyd was asked to help restrain the patient to ensure that no one was injured, but Ms. Loyd instead began asking the patient questions. However, Ms. Loyd argues that she did leave the room to inquire about the patient but that she also helped restrain the patient.
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The Education Management Corporation (EDMC) has recently motioned the court to dismiss a suit against the Art Institute of Pittsburgh, which it manages. According to a report by one news source, the Art Institute of Pittsburgh was sued by two former employees who alleged that they were being discriminated against because of their race and age.

ring-binder-2-1286890-m.jpgBackground
In April of 2014, two former admissions office employees sued EDMC, making allegations that the Institute engaged in a series of illegal employment practices. The two individuals claimed that the Institute terminated individuals and refused to promote others because of their race and age. Furthermore, they alleged that the Institute participated in retaliation in regards to a disput- resolution policy.

The attorney for the Institute attempted to dismiss the suit by arguing that its dispute-resolution policy is the only way to resolve any workplace issues. However, the attorney for the plaintiffs in this case countered by explaining that, although the company has a dispute-resolution policy, that policy does not trump the Supreme Court, nor does it trump statutory law, nor is it appropriate public policy.
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office-chair-1431952-m.jpgThe Sixth Circuit Court of Appeals found that a woman who claimed a Family and Medical Leave Act (FMLA) violation was entitled to a judgment in her favor. During the trial in this case, the jury awarded the woman $173,000, but that amount was reduced by the judge to $90,788. This decision was reversed by the Sixth Circuit, and she was awarded $173,000.

Wallace v. Fedex Corp.

Wallace v. Fedex Corp. is a classic example of the impact that the violation of an employee’s rights can have on an organization. The Sixth Circuit explained that, although FedEx has a right to ask an employee to provide a medical certification in relation to an FMLA request, it must also explain the consequences to an employee if he or she fails to provide such documentation. In this instance, FedEx failed to inform the plaintiff about what would happen if she did not provide a certification.

Ms. Wallace was employed by FedEx as a paralegal for over two decades. Unfortunately, she became ill, which resulted in a series of medical difficulties that affected her ability to attend work as she was regularly scheduled. After discussing her issues with her employer, FedEx finally agreed to provide Ms. Wallace with the documentation necessary to proceed with leave under the FMLA.
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The Federal Government’s Equal Employment Opportunity Commission recently updated the enforcement guidelines regarding discrimination against pregnant women in the workplace. The revision of these guidelines comes over 30 years after pregnancy discrimination was first banned in the workplace, and is the first revision since then.

maternity-portrait-2-1413394-m.jpgThe 1983 Pregnancy Discrimination Act is part of the larger American with Disabilities Act. The Act makes it illegal for employers to make hiring, firing, promotion, and other employment-related decisions based on an employee’s status as a pregnant woman or in relation to any pregnancy-related illnesses.

While pregnancy itself is not listed as a “disability” under the Act, pregnancy-related illnesses can qualify. This means that if a pregnancy-related illness rises to the level of a “disability” under the terms of the Act, an employer may need to make reasonable accommodations for the employee, including:
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It is becoming a more common practice for employers to insert arbitration clauses into contracts for employment. Arbitration clauses specify that if an employment dispute arises, rather than go to court, the employer and employee agree to arbitration in a designated forum. Arbitration proceedings tend to be less formal than court proceedings, but also have fewer safeguards – the arbitrator may not necessarily be a judge or a lawyer, and may not necessarily abide by the prevailing law in coming to a decision. Once a ruling is made, it can be difficult to appeal to the trial court, and the employee may be stuck with the decision. That is a problem because more often than not, employers get to choose the arbitration firm, and the firm may show a bias toward employers in order to get repeat business.

clothing-1336617-m.jpgUnfortunately for employees looking to sue in court, the United States Supreme Court has held that the Federal Arbitration Act of 1925 supercedes state laws that mandate certain grievances be litigated in court. The only exceptions that state courts have been able to carve out have had to do with the “unconscionability” of the arbitration clause — that the clause was both an unfair surprise and incredibly oppressive to one of the contracting parties. Yet too often arbitration clauses are upheld, cutting off employees’ options for redress.

Recently, the Sixth Circuit Court of Appeals held that another employee was bound by the arbitration clause in Tillman v. Macy’s, Inc. Cecilia Tillman was an employee of May’s Department Store in 2005, when May’s merged with Macy’s and she became a Macy’s employee. After the merger, Macy’s premiered its Solutions inSTORE program, which outlined a four-step dispute resolution process that ended with binding arbitration for both Macy’s and the employee. Any employee who participated in the program waived his or her right to file a lawsuit in court. Macy’s claimed that it explained the policy in a mailing and during a video training, and employees had the right to opt out if they filled out a certain form. Tillman attended the training, but argued that Macy’s “breezed over” the information about mandatory arbitration. She further argued that merely continuing to work as an employee of Macy’s should not constitute a waiver of her right to file a lawsuit in court.
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When an employee experiences workplace discrimination, he or she must usually first go to the Equal Employment Opportunity Commission (EEOC) if the workplace is covered by federal law. The EEOC investigates the claim, and may pursue litigation on the employee’s behalf depending upon the type of case. Other remedies include mediation, settlement, and conciliation.

handshake-671413-m.jpgThe EEOC’s conciliation methods have recently come under scrutiny of the Seventh Circuit Court of Appeals. In EEOC v. Mach Mining, LLC, the Seventh Circuit recently heard oral arguments as to whether courts should be permitted to review the EEOC’s conciliation efforts. If so, should the reviewing courts use heightened scrutiny or a deferential scrutiny?

Conciliation involves the EEOC informing the employer that there is reasonable cause to believe that discrimination has occurred. The EEOC then invites both parties to sit down and the EEOC investigator works with them to come up with a fair resolution. This may involve negotiations with offers and counter-offers. The idea is to resolve the issue without spending money on litigation.
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When employees discover that their wages have been illegally withheld, or that their employers have committed other acts that would be illegal under state or federal law, it is often months or years after the injury first occurred. Whether an employee can get relief, and how much, depends upon whether the statute of limitations has run. The statute of limitations acts as a time limit for which an injured party can file a lawsuit from the date of the injury. This time limit may vary by state, type of injury, or statute. In Kentucky, the statute of limitations for labor law claims is five years, while it is two years for Indiana. The statute of limitation may also specify that the clock starts running only after the injured party “should have known” about the injury, rather than when the injury actually occurred.

copy-cat-295013-m.jpgMany employers have sought to circumvent the statute of limitations by placing language in employment contracts that shortens the amount of time employees have to file a claim. They argue that these clauses are valid, as the employee agrees to them when he or she signs the contract. However, this past month, the Sixth Circuit Court of Appeals disagreed.

In Boaz v. FedEx, the Sixth Circuit held that a contract clause mandating that a suit must be filed within six months of the injury was invalid. The case began in 2009, when FedEx employee Margaret Boaz sued her employer for wage and hour and Equal Pay Act violations between 2004 and 2008. Boaz had taken over a higher position with many more responsibilities, but her pay reflected her original low-level status. Boaz argued that she should have been paid what the previous male employee in that position was paid. FedEx, in turn, argued that Boaz’s lawsuit should be dismissed because under her contract, she had only six months to file from the time the pay disparity last occurred.
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