Recently in Employment Law Category

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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October 5, 2012

Kentucky Coach Claims Age and Race Discrimination in Wrongful Termination Lawsuit

1015485_basketball.jpgOn August 31, 2012, a Kentucky high school coach that was fired in 2008 filed a wrongful termination lawsuit against the school board. He had been employed by the school for 22 years as an assistant coach, and an additional 11 years as head coach of the boys' basketball team. Despite his long tenure, eight district championships, and a 204-117 record, the school terminated him. His lawsuit claims he was a victim of age and race discrimination.

Kentucky is an "at-will" employment state. This term means that an employer can fire an employee whenever he pleases. However, there are certain situations in which the employee is protected. If the employer and employee signed an employment contract stating the employee has to remain employed for a certain length of time, then an employer cannot terminate the employee before the contract is up without valid reason. Otherwise, this would be a breach of contract. Union employees also have some protection against being fired at the whim of them employers.

A third type of protection for employees comes under Title VII of the Civil Rights Act of 1964 and the Age Discrimination Act. These acts pertain to employees that belong to groups of people who have a history of being discriminated against because of certain characteristics such as their gender, race, religion, ethnicity, and age. If an employer terminates or otherwise negatively treats an employee based on one of these characteristics, the employee has been discriminated against and has the right to seek compensation from the employer.

Some discrimination lawsuits ask for lost income with interest, benefits, and awards for emotional distress, all of which are known as compensatory damages. Others also ask for additional money in an attempt to punish the company for its wrongdoing. This type of damages is called punitive damages, and they are often awarded to convince the employer not to discriminate against future employees.

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September 20, 2012

Franchisee of Restaurants in Kentucky Settles Race Discrimination Lawsuit

An Ohio company that owns Panera Bread franchises in several states, including Kentucky, has settled a race discrimination lawsuit involving an ex-employee in Pennsylvania. The settlement will cost the company at least $76,000, possible more if additional employees come forth to say they experienced discrimination too.

The employment discrimination lawsuit claimed that the ex-employee, who is African-American, was only allowed to work in the kitchen at the restaurant, per the owner of the franchise. He was not allowed to serve customers, run the register or seek a management position because he was not to be seen by anyone. As a result, he was denied any chance of being promoted, even though he worked at the restaurant from November 2009 through August 2011. He finally left because of the alleged unfair treatment.

His lawsuit was not the first filed against the franchisee. A white manager who had been fired at the same restaurant supposedly over medical leave violations filed a lawsuit claiming he had been wrongfully terminated because he refused to stop having an African-American man run the cash register. According to the suit, a district manager said the franchisee would "(expletive) if he got a look at that." The employee that was being allowed to run the register is the one who filed the above lawsuit in January 2012.

The African-American employee will receive approximately $10,000 from the settlement. In addition to paying damages and attorneys' fees, the franchisee was also ordered by the judge to place a notice in local newspapers in every state he has a restaurant, notifying other employees of the settlement in case they were discriminated against as well. They will have the opportunity to join the lawsuit and receive 70 cents per hour for every hour they worked after their first year. This amount represents the extra money they could have earned if they had been given the chance to be promoted after their first year of employment. One attorney estimates that 200-300 current and former employees that were employed by the franchisee between January 2008 and January 2012 may be entitled to this compensation.

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August 21, 2012

Kentucky Employment Law Cases Put Ministerial Exception Doctrine to the Test

Earlier this year, the U.S. Supreme Court ruled in a case where a teacher at a Lutheran School had filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating she could not file a workplace discrimination lawsuit because she was covered by the "ministerial exception." The Court of Appeals overturned the ruling based on the fact that the majority of her day was not spent in a ministerial capacity. However the U.S. Supreme Court ruled that she was indeed covered by the doctrine and that the school had the right to terminate her.

The ministerial exception doctrine gives religious institutions the freedom to hire individuals that they think are most qualified to minister to their members without worrying about discrimination charges. But who constitutes a "minister" at a church-affiliated school or hospital and exactly what employment law issues are covered is still unclear. Three recent Kentucky employment law cases involving ministerial exception had differing results.

The first two cases involved two professors at the Theological Seminary in Lexington, Kentucky. Both taught at the Protestant school, but neither were followers of the school's faith. In 2009, the seminary cut staff. Both men filed wrongful termination lawsuits, stating they were tenured professors and that they could only be terminated for failing to do their jobs or for misconduct, not for budgetary reasons. But both the district and appeals court ruled against the professors because of ministerial exception, stating the school has the right to decide who to terminate and that the government cannot intervene.

In the third case, a Louisville, Kentucky pastor was fired by the church he led from 2005 to 2010. In this case, the pastor was not claiming wrongful termination, but rather a breach of contract. A breach of contract occurs when and employer and employee agree to certain terms and sign a contract, the one party does not uphold their part of the agreement. In this case, the pastor claimed he was over $64,000 in salary and benefits by the church and he wants the church to pay him this amount. The Jefferson County Circuit Court refused to hear the suit based on the ministerial exception. In this case, the employee was an actual minister, so the court's decision makes sense in that respect.

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July 17, 2012

Kentucky Sexual Harassment Case to Cost City over $250,000

In 2009, an employee at the Fayette County Detention Center in Kentucky alleges that her supervisor sexually harassed her. Her lawsuit stated that he humiliated her in front of her co-workers and an inmate on separate occasions. She also claimed that he touched her breast. When she reported this behavior, she was supposedly a victim of retaliation as well. The lawsuit named the director of the detention center and the city. She was one of three women who filed lawsuits against the detention center alleging sexual harassment, racial discrimination, and retaliation.

This Kentucky sexual harassment case went to trial in March 2012. The jury handed down a split decision, which means they agreed with the plaintiff on some points and agreed with the defendants on others. The detention center director was excused from the case by the judge because he did not think the director played a role in the harassment. The jury found that the supervisor had indeed harassed the employee, but did not find any evidence that he actually touched her breast. Jurors also did not think there was enough evidence to prove her supervisor had retaliated against her after she complained about his behavior. They awarded the sexual harassment victim $60,000, most likely to cover any lost wages and to compensate her for any emotional or mental distress the alleged harassment may have caused her. Some of the damages may have been awarded simply to punish the city for allowing this to happen and to persuade city officials not to allow this to happen again at the detention center. Damages of this type are called "punitive damages." The employee that was allegedly harassed says she is thankful that someone listened to her.

As a further blow to the city and its bank account, the judge agreed that the city was responsible for the plaintiff's attorneys' fees that accrued during the preparation and attending of the trial. They totaled just over $200,000. If the city decides to appeal this decision and loses, it will likely be held responsible for those additional attorneys' fees as well.

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June 29, 2012

Kentucky Commission on Human Rights Protects Kentucky Workers from Discrimination

The Kentucky Commission on Human Rights (KCHR) was founded in 1960 to help stop discrimination of people based on their race or ethnicity. When the Kentucky Civil Rights Act was passed in 1966, KCHR took on the task of enforcing this law throughout the state. This commission is similar to the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces anti-discrimination laws that prohibit employers from discriminating against employees or potential employees based on age, gender, race, religion, ethnicity, or disability. KCHR reviews complaints filed by employees to determine if they have a valid claim of discrimination, sexual harassment, or wrongful termination under state and federal employment laws.

Not all employers are governed by the Kentucky Civil Rights Act. An employer must have at least eight full-time workers for twenty or more weeks in a year for the act to apply. Federal anti-discrimination laws also may not apply to those businesses that have a small number of full-time employees. An employee must file a claim with KCHR within 180 days of the incident to have his or her claim considered.

Once a complaint is received by KCHR, an enforcement officer is assigned to the case to act as a neutral party between the employee and employer and investigate the claim. A letter is sent to the employer who has 20 days to respond with its side of the story. The officer will conduct an investigation, talking to witnesses and reviewing documentation. If he feels that discrimination most likely occurred, the case will be referred to a staff attorney. If he does not think discrimination occurred, he will recommend that the complaint be dismissed for "no probable cause." Both sides will be encouraged to conciliate the case throughout the investigation, which is similar to settling a dispute out of court. If a conciliation agreement cannot be reached, the complaint will be heard by the KCHR and a decision will be made by the commission.

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June 12, 2012

How the Proposed Pregnant Workers Fairness Act Might Affect Female Kentucky Workers

The Pregnancy Discrimination Act (PDA) was added to the Civil Rights Act of 1964 to ensure that women were not discriminated against while pregnant. The act prohibits employers from refusing to hire a woman because she is pregnant; requires an employer to treat a pregnant woman the same as someone with a different temporary disability if she is unable to work temporarily; and requires an employer to provide the same type of health insurance at the same rate as other employees.

But there are some issues that the current act does not cover, which is why legislators introduced a new bill called the Pregnant Workers Fairness Act in May 2012. This act would essentially afford pregnant women the same protections and flexibility that those with disabilities are given. Under the current act, many employers are not accommodating to pregnant women because they don't have to be. The Americans with Disabilities Act (ADA) does not cover pregnant women because they are not actually disabled, and some companies take advantage of the difference. Many cases illustrate this discrepancy. Noreen Farrell, executive director of Equal Rights Advocates (ERA) gives this example: "We see that male firefighters who throw out their backs are given desk jobs, but women who are pregnant don't get them...There is an ability to provide accommodations, but employers don't want to."

Some women don't even request an accommodation because they are afraid their boss will force them to take their paid time off guaranteed by the Family Medical Leave Act (FMLA) too soon. If a woman takes off too soon, she may end up having to take unpaid time right before and after her delivery, something many families cannot afford. Others who have asked have been ignored or fired.

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June 5, 2012

Company Settles Kentucky Sexual Harassment Lawsuit

Known as the sponsor of the 2010 World Equestrian Games at the Kentucky Horse Park in Lexington, Alltech is an international company based in Nicholasville, Kentucky that produces animal feed, a beef product, coffee and alcoholic beverages. According to a lawsuit against the company that recently settled, it also allegedly produces a hostile work environment for female employees.

A woman who worked for Alltech for about four years filed a sexual harassment lawsuit against the company in May 2011. She had allegedly been harassed by her boss for the duration of her employment. The harassment ranged from sexual calls and emails to actually being locked in a conference room and inappropriately touched by him. She also claims that other employees were sexually harassed by her boss and others, stating "The culture and leadership at Alltech created an environment which fostered and condoned acts of sexual harassment."

The employee allegedly reported the situation to her boss's supervisor who told her not to worry about it because she was a strong woman and could take care of herself. In April 2011 she went to someone who worked outside the company - an auditor - and reported what had been happening. It was announced shortly thereafter that all emails over a year old would no longer be kept, and Alltech began an investigation into the sexual harassment allegations. Her boss resigned from the company, but was kept on for special projects at the beginning of May 2011.

Then on May 17, the company stated that any employee disputes would be handled through arbitration rather than through the courts. The employee was told this new policy would cover her complaints even though she had complained before the policy was put in place. The employee did not agree with this policy and she left the company and filed a lawsuit on May 20, 2011. Alltech tried to have the lawsuit dismissed based on their new arbitration policy, but the courts said the employee had not agreed to the policy and the case was allowed to proceed. To avoid having depositions taken of their executives and other employees, the company agreed to settle the lawsuit with the Kentucky worker for an undisclosed amount.

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