Recently in Employment Law Category

November 26, 2014

Adding Weight As Employment Discrimination Class

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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October 27, 2014

Retaliation Lawsuit by Railroad Worker Dismissed by 8th Circuit

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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September 26, 2014

Supreme Court of Washington Rules in Favor of College in Age Discrimination Suit

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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September 19, 2014

Sixth Circuit Rules against Plaintiff in Employment Discrimination Suit

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.


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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September 12, 2014

Art Institute Moves to Dismiss Discrimination Case Based on Their Anti-Discrimination Policy

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.


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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September 5, 2014

Sixth Circuit Reverses Lower Court Decision on FMLA Issue

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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August 22, 2014

EEOC Updates Pregnancy Discrimination Guidelines

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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November 25, 2013

Sixth Circuit Finds That Employee Who Continued to Work for Macy's Waived Her Right to File a Lawsuit in Tillman v. Macy's, Inc.

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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November 11, 2013

Seventh Circuit to Consider Whether EEOC Conciliation Process Should Receive Outside Scrutiny in EEOC v. Mach Mining, LLC

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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September 5, 2013

Sixth Circuit Finds That Employment Contracts That Shorten the Statute of Limitations on FLSA Claims Are Invalid in Boaz v. FedEx

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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August 28, 2013

Kentucky Court of Appeals Rules That Morbid Obesity Is a Disability in Pennington v. Wagner's Pharmacy, Inc.

Under the federal Americans with Disabilities Act (ADA) and Kentucky law, private employers with at least 15 employees cannot discriminate against employees with a disability. That means that they cannot refuse to hire, promote, or train otherwise qualified disabled employees, nor can they deny them pay or benefits, or terminate their employment just because of the disability. Qualified disabled employees must receive reasonable accommodation for their conditions unless the accommodation would impose "undue hardship." Reasonable accommodation is any adjustment or modification needed for the employee to do his/her job. It usually becomes an undue hardship when the cost is too great for the organization to bear. However, most accommodations are inexpensive and easy to implement.

weighing-788291-m.jpgThe question is what qualifies as "disabled." While certain physical and mental disabilities are widely accepted, others are more controversial. For instance, many debate whether obesity can be considered a disability, even after the American Medical Association labeled it a disease. Is obesity a condition that the person brought on through a lack of self control, or a true illness? The Kentucky Court of Appeals came down on the side of illness, and a disability, in Pennington v. Wagner's Pharmacy, Inc.

In Pennington, Melissa Pennington worked for 10 years as a food truck operator for Wagner's Pharmacy. Pennington was five feet, four inches and weighed 425 pounds. In 2007, Pennington went to the manager's office on her off-day to collect her paycheck. Pennington was not at her "best" appearance due to moving into a new residence. Soon after, the manager directed Pennington's supervisor to fire her for her appearance. However, Pennington's coworkers claimed that Pennington was fired because she was "overweight and dirty."

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August 14, 2013

Firefighters Discriminated Against by Multiple Choice Test Can Be Promoted - Howe v. City of Akron

In Kentucky and other states, employers must be careful to avoid discriminatory practices -- such as refusing to hire or promote on the basis of race, national origin, gender, age, religion, or disability. As a result, many employers have turned to solutions like standardized testing to determine a candidate's eligibility. The theory is that such tests will provide an objective assessment of the candidate's skills and knowledge, regardless of background. Unfortunately, sometimes these tests can produce the harmful results that they were meant to prevent.

Screen Shot 2013-08-09 at 2.54.01 PM.pngIn Howe v. City of Akron, the Sixth Circuit Court of Appeals considered a case where an "objective" test ended up discriminating equally against black and white candidates. The case involved promotion procedures of the Akron, Ohio fire department: for promoting employees to captain and lieutenant positions, the department used a 100-question multiple choice test. The top three scorers would then be chosen for an interview. The results were that while 75% of each race and age group passed the test, white people were promoted to lieutenant at a higher rate over black people -- 36% versus 20%. However, the results were reversed with captain positions -- 71% of black people were promoted versus 27% white people.

In 2006, 23 employees who were not promoted sued the city under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, claiming disparate impact. In 2008, the district court judge, on the advice of the jury, found in favor of the employees and awarded them damages in equal amounts: each lieutenant candidate received $9,000 in compensatory damages and $72,000 in front pay, while each captain candidate received $10,000 in compensatory damages and $80,000 in front pay. However, the district court granted the City of Akron's request for a new trial for damages because of the jury's choice to award equal amounts, despite the employees' different circumstances. The court also issued an injunction requiring the City to promote the employees no later than July 2011.

The City eventually appealed to the Sixth Circuit, arguing that there was not enough evidence that its test produced a disparate impact, and that the district court abused its discretion by issuing the injunction. Because the district court had not yet issued a final decision on the disparate impact claim, the Sixth Circuit looked at only whether the lower court had abused its discretion.

The Sixth Circuit considered the standard for issuing a preliminary injunction: whether the "movant" (party seeking the injunction) is likely to prevail on the merits of the case; whether the movant would suffer irreparable injury without the injunction; whether the injunction would cause substantial harm to the other party; and whether the injunction would be in the public interest. The Sixth Circuit concluded that the employees had met the burden for a preliminary injunction in that they were substantially likely to succeed on their disparate impact claim; that the employees would suffer irreparable injury if they were not promoted because they would not be able to gain the experience to move to the next rank; the City would not be substantially harmed by the injunction; and there was no evidence that promotions would harm the public interest.

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January 24, 2013

Louisville Kentucky Landmark Restaurant Closes Down Amid Unfair Pay Practices Claims

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.

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January 3, 2013

Kentucky Union Workers to Be Reinstated in Jobs after Collusion Ruling

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.

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November 19, 2012

Indiana Teacher Claims Age Discrimination at Age 80

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.

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