Recently in Workplace Discrimination Category

March 26, 2014

Sixth Circuit Affirms and Reverses Lower Court Ruling on Title VII Claim in Laster v. City of Kalamazoo

Recently, the Sixth Circuit Court of Appeals affirmed a federal district court's ruling dismissing an Ohio safety officer's claims that he was forced to resign from the Kalamazoo Department of Public Safety in 2010 due to racial discrimination.

ready-to-roll-542939-m.jpgIn Laster v. City of Kalamazoo, Mark Laster, an African American man, had worked for the Kalamazoo Department of Public Safety for more than 23 years. During his employment, he claimed that he was treated less favorably than other employees in similar situations. For example, Laster believed that he was subjected to greater scrutiny, that policies were selectively enforced against him, and that his employer stood back and permitted individual employees to discriminate against or harass Laster. Laster believed that at least part of his treatment was due to his race. After reporting many instances of harassment to his employers, he eventually filed a claim with the Equal Employment Opportunity Commission, then Title VII discrimination and retaliation claims against his former employer.

The district court found in favor of the City of Kalamazoo and Laster appealed. The Sixth Circuit applied strict scrutiny to the circumstances of his case, which is required for racial discrimination cases involving government bodies. For a government body to pass strict scrutiny, it must be shown that it had a compelling government interest, that the law or policy was narrowly tailored to achieve that interest, and that the law or policy was the least restrictive means for achieving that interest. Strict scrutiny is used for race, national origin, or alienage situations, compared to intermediate scrutiny for gender and rational basis (the lowest scrutiny) for nearly everything else.

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February 21, 2014

United States Supreme Court Declines to Hear Racial Discrimination Case, Baker & McKenzie LLP

The United States Supreme Court recently declined an attempt to revive a race bias retaliation lawsuit against the law firm, Baker & McKenzie LLP, leaving in place the Seventh Circuit's ruling that her discrimination claims were time barred and her retaliation claim was speculative.

u-s--supreme-court-1-1038827-m.jpgThe events of Swanson v. Baker & McKenzie LLP began in 1995, when Gloria Swanson, a black woman, worked as a secretary for one of the law firm partners. She did not get along with him and requested a transfer. After her request was denied, Swanson decided to resign from the job, where she had worked for five years. She refused to sign a release that would have prohibited her from filing a lawsuit, believing that white secretaries in her position had received transfers in the past. Swanson was eventually able to negotiate a more favorable arrangement.

Swanson then obtained similar positions at other Chicago law firms, including one where she worked for 14 years before being laid off in 2011. After a stint of unemployment, during which time she was rejected at the final stage for many positions, Swanson hired a reference check company. The company contacted Baker & McKenzie in July 2012 and learned that the Human Resources Manager could not find her in its system, and thus could neither confirm nor deny her employment at the firm. The department claimed that the payroll records had recently changed, but that they would try to obtain access to the old records. Swanson found the explanation to be suspicious because the department was able to confirm the employment of a partner who died in 2007 and had worked for the firm for 50 years.

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January 17, 2014

Seventh Circuit Determines That the EEOC Conciliation Process Is Not Reviewable in EEOC v. Mach Mining, LLC

The Seventh Circuit Court of Appeals recently became the first federal Court of Appeal to deny employers an affirmative defense that they have often used in lawsuits involving the Equal Employment Opportunity Commission (EEOC): the EEOC failed to conciliate prior to the lawsuit.

handshake-671413-m.jpgIn EEOC v. Mach Mining, LLC, a case discussed a few months ago on this blog, female applicants to a mine located in Johnston City, Illinois claimed that they had not been hired solely because of their gender. They filed a charge of discrimination with the EEOC in 2008, and in late 2010, the EEOC informed Mach Mining that it intended to start the informal conciliation process. The parties discussed a resolution, but failed to make an agreement. The EEOC later told Mach Mining that the conciliation process had been unsuccessful, and proceeded to file a complaint in district court two weeks later. In Mach Mining's answer, it cited several affirmative defenses, including that the EEOC failed to conciliate in good faith. The EEOC sought summary judgment on the matter, claiming that the conciliation process was not subject to judicial review. The district court denied summary judgment, claiming that conciliation efforts are subject to some level of judicial scrutiny, at least to see whether good faith efforts were made. The EEOC then appealed its case to the Seventh Circuit.

The Seventh Circuit ultimately reversed the district court's summary judgment ruling. In doing so, the court looked at the following: whether language in Title VII allowed EEOC conciliation efforts to be reviewable; whether a statutory standard for the conciliation process existed; whether judicial review would undermine the conciliation process; and whether it was proper for employers to shift the focus from their actions to the pre-litigation practices of the EEOC.

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December 11, 2013

United States Supreme Court to Consider Whether Private Corporations Have Religious Beliefs

The United States Supreme Court recently agreed to hear the case concerning whether corporate employers are required to provide free birth control, as mandated by the Affordable Care Act (ACA), even if their "consciences" do not support it. While religious institutions and non-profits are exempt from this provision, this case will test whether private corporations are "people" enough to have religious convictions that trump the needs of their employees. Oral arguments are expected to take place in March 2014.

cross-with-shadow-1-1356536-m.jpgThe Supreme Court agreed to hear the argument after the Circuit Courts of Appeal offered split decisions on the issue -- including the Seventh Circuit in early November. In Korte v. Sebelius, a two-judge majority found that small, closely held corporations were "people" within the meaning of the Religious Freedom Restoration Act and were entitled to assert that the mandate substantially interfered with their rights.

The case involved two Catholic families with closely held corporations, one a construction company in Illinois and the other a manufacturing company in Indiana that produces automobile safety systems. Although the companies are both secular and devoted to earning profit, the Seventh Circuit still noted that they operated according to their owners' Catholic beliefs. Therefore, the owners should not have to condone "abortion, sterilization, and the use of abortifacient drugs and artificial means of conception."

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November 18, 2013

Two Dozen Muslim Kentucky Employees to File Discrimination Claims After Employer Fails to Let Them Pray

Recently, 11 former employees of DHL Global Mail in Kentucky, and soon as many as 24 total, filed complaints with the federal Equal Employment Opportunity Commission (EEOC), claiming that they were fired for praying on the job. All 24 employees are or were Muslim immigrants from Somalia. The employees filed under Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act, requesting damages, reinstatement where appropriate, and policy changes.

salat-ied-115358-m.jpgThe problems began this past October, when there was a change in office policy that removed the flexible break policy that had been in place. The DHL Muslim employees had used that time to step out of the office and pray. Once the policy was reversed, however, the employees had no options, and ended up voluntarily taking time off of the clock. The 24 Muslims who worked in the mail room stepped outside at 7:24 p.m. and gathered to pray, separated by gender. The supervisor then called three of the employees in for an explanation, later calling the police to ensure that the employees left without causing a scene.

Under Title VII of the Civil Rights Act of 1964, a number of classifications are protected from discrimination, including race, national origin, color, gender, and religion. Employers are required to reasonably accommodate an employee's religious beliefs or practices unless doing so would pose "more than a minimum burden" on the business. Among the examples of reasonable accommodations that the EEOC lists are flexible schedules, voluntary shift substitutions, job reassignments, and modifications to workplace policies.

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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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October 25, 2013

United States Supreme Court Considers Whether to Resolve Age Discrimination Issue in Madigan v. Levin

At the beginning of its new term this month, the United States Supreme Court heard oral arguments for the case Madigan v. Levin, which came from the Seventh Circuit Court of Appeals. The case involves the issue of whether an employee can sue an employer for age discrimination under the U.S. Constitution when the federal Age Discrimination in Employment Act (ADEA) was intended by Congress to be a remedy.

u-s--supreme-court-1-1038827-m.jpgHarvy Levin, age 61, worked as an attorney general for the state of Illinois. He and two older attorneys were terminated from their jobs and replaced by younger attorneys. In Levin's case, the younger attorney was in her 30s. Levin sued his employer under the ADEA, and also under another federal law, claiming that his civil rights were violated.

Levin's case was tossed out of court because Levin was not actually an employee in the usual sense, but a political appointee. Levin then argued that the Illinois attorney general's office had violated his civil rights, only to be informed that he could not make that argument because only the ADEA was meant to address age-related discrimination claims. Levin appealed to the Seventh Circuit, which ultimately sided with him. The Seventh Circuit stated that even with the ADEA, an employer had to act according to the Constitution, and that wronged employees should be able to sue for a Constitutional rights violation when the ADEA does not apply. The Seventh Circuit's finding was at odds with the findings in other federal appeals court, which made it highly likely that the U.S. Supreme Court would agree to hear the case and settle the split.

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September 23, 2013

Seventh Circuit Court of Appeals Rules That Employee Terminated For Mediation Misconduct Did Not Face Retaliation in Benes v. AB Data, LTD

Under Title VII of the federal Civil Rights Act of 1964, discrimination against employees on the basis of race, gender, national origin, religion, age, or disability is prohibited. That includes not just discrimination in hiring, firing, or every day workplace activities, but also retaliatory acts against employees who report workplace discrimination. Retaliation can include demoting the individual or terminating his or her employment. The question is what constitutes retaliation. Not long ago, the Seventh Circuit Court of Appeals determined that one case of firing did not meet that threshold.

handshake-671413-m.jpgIn Benes v. AB Data, LTD, the employee, Michael Benes, had filed a claim with the Equal Employment Opportunity Commission (EEOC) stating that the AB Data firm committed gender discrimination. The claim reached the mediation phase, where Benes first had a session with his employer before the two parties separated and used a go-between to relay each other's offer. After learning of the employer's offer, Benes went into the room where the employer's representatives were gathered and exclaimed that they could "shove" their proposal and fire him, and he would take them to court. The employer responded by terminating Benes's employment. Benes then filed a lawsuit under Title VII, claiming retaliation rather than gender discrimination.

A magistrate judge ruled in favor of AB Data on a motion for summary judgment, stating that Benes had been fired due to misconduct during the mediation rather than for retaliation. Retaliation is only prohibited in cases where "[a person] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

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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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May 22, 2013

Even Teenage Seasonal Employees Can Experience Kentucky Employment Discrimination

As schools are letting out for the summer, some high school and college students will turn their attention to earning some cash during their break. Being new to the workplace, many students are unaware of the laws in place to protect them and others from workplace discrimination and sexual harassment. These laws protect workers who are employed by companies of a certain size, regardless of whether the job is full-time, part-time, or seasonal. The Equal Employment Opportunity Commission (EEOC) gives the following advice to young workers:

Don't Discriminate: You should not treat your co-workers unfairly or harass them because of their race, skin color, national origin, sex (including pregnancy) religion, disability, age (age 40 or older) or genetic information. For example, you should not tell sexual or racial jokes at work or tease people because they are different from you.

Report Discrimination: You should tell your company about any unfair treatment or harassment. Find out if your company has a policy on discrimination that specifies who you should contact about these issues.

Request Workplace Changes: You have a responsibility to tell your company if you need a workplace change because of your religious beliefs or disability. Your request does not have to be in writing, but you must provide enough information so your company can determine how to help you.


In a case settled in 2012, an 18-year-old female said she was subjected to sexual harassment by a male cashier while working at a Dairy Queen. During the six months that she worked there, the harassment didn't stop, even after she told her manager. She called the police, who came to investigate while she was working. The manager then fired her while the police were there. She filed a claim with the EEOC, and a complaint was filed alleging sexual harassment and retaliation. The parties settled the case, with the company agreeing to pay $17,500, to provide sexual harassment training to its managers and supervisors, to post a notice about the lawsuit, and to report any additional complaints to the EEOC.

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April 26, 2013

Indiana Restaurant Settles Pregnancy Discrimination Lawsuit

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.

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March 22, 2013

Woman Can Continue Indiana Discrimination Lawsuit against Catholic Diocese

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.

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March 1, 2013

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

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.

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February 22, 2013

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

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.

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