Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 1/7/2024 told us a court tosses employee’s COVID vaccine mandate claim. Many employers, especially those in the health care field, imposed mandated COVID vaccination for employees. Of course, they had to deal with requests for reasonable accommodation for medical and religious reasons. In this case, it was a religious accommodation request. See the post for the background. Employers must accommodate if they can, and now there is a different basis upon which a religious accommodation request can be denied (see our posts from Friday 8/11/2023 and Sunday 7/16/2023 for a start). But accommodation is not a given as the employee here found out – and as the court affirmed on appeal on the basis noted in the post.
TAKEAWAY: If there is a process, it must be followed. Simple tenet in any place of employment.
The post on Monday 1/8/2024 noted the EEOC inks $90K age discrimination settlement for 49-year-old rejected for sales job. A molecular diagnostics company has agreed to pay $90,000 to settle the EEOC’s suit that was filed in March 2023. It was alleged that Exact Sciences turned down the applicant for a medical sales representative opening because the company sought “more junior” job applicants. There were other allegations about notes written by a recruiting consultant for Exact Sciences – see the post. The company later hired a 41-year-old candidate with fewer years of experience than the plaintiff. The settlement includes a consent decree under which Exact Sciences will implement additional age discrimination training for hiring managers and ensure that third-party recruiters are aware of its policies preventing age discrimination in hiring. And what did Exact Sciences say about the suit? See the post.
There were other notable age discrimination settlements in 2023 too. In March 2023 the EEOC announced a $460,000 settlement with manufacturer Fischer Connectors over allegations that the company fired an HIR director and replaced her with two younger workers after she questioned plans to replace older workers. A similar suit surfaced in September related to IBM – see the post. And another age discrimination-related settlement occurred in May 2023 when Target and the Communications Workers of America union agreed to settle claims over improper job advertisements – see the post for more details on that.
TAKEAWAY: As always, employers must know what they can and cannot do under the law – even when using third parties such as recruiters or consultants – so bringing an employment lawyer into the loop early on is a good idea.
The post on Tuesday 1/9/2024 told us a 2022 law required HOAs (and condos) to assess maintenance needs – so now it’s time to pay up (i.e., reserves). The law requires all MD housing cooperatives and condominiums, and homeowners’ associations with more than $10,000 in common area assets, to conduct reserve studies every five years analyzing what portions of shared infrastructure, such as a roof or boiler, might need to be replaced. That law also sets deadlines for the association to collect the money for the projects – how short that deadline can be is in the post. The law was passed in 2022 in response to the 2021 Surfside condo collapse in FL. Professionals who work in this area – including property managers and community association lawyers – along with advocates and residents think that the well-intentioned law may have a downside too. Why/how? See the post. Even the bill’s lead sponsor said he is looking to pass clarifying legislation. The law affects associations state-wide, but apparently may hit hardest in Ocean City where some residents could face special assessments of up to $58,000. You read that right. Some MD cities already required reserve studies, but they were few and far between. Surfside changed the momentum and the law passed. It requires that associations have a reserve study in place within a year and then fund (by one of the methods discussed in the post) within the set time (noted in the post). And there is more: reserve studies must be updated every 5 years and new Board authority as noted in the post. MD is not the only state to mandate reserve studies – there is a link in the post to all 12 states that do so. Do you know what PA law provides (at least for condominiums) as to reserve study and funding requirements? See the post.
TAKEAWAY: Reserve studies are a wonderful tool (and this author recommends them for every association, no matter the size). But the Board must then use the study to budget for future needs and not just put it in a drawer.
The post on Wednesday 1/10/2024 noted that Disney sued by fired employee after reportedly denying simple disability accommodation. Not good. Let’s look at the lawsuit filed on December 15, 2023. Samantha Barash landed a role with the Disney College Program. This is a selective paid internship – more details are in the post. The program combines on-the-job training with educational coursework and provides a unique insight into Disney’s operations. Barash made it clear to Disney before coming to Orlando that she had a disability and would need accommodation in her work environment. Allegedly Disney was aware and has a policy of complying with ADA employee requests. However, Barash alleges that Disney discriminated against her by terminating her employment after asking for a stool to sit on during work hours. What does she seek by way of damages? See the post.
Barash was given a stool to sit on in her first role as a greeter when starting her employment with Disney. However, she was eventually moved to a new role in parking. She alleges she was denied use of a chair while working in that position. When that happened, and when she was discharged, are noted in the post. Want more? Barash says she wasn’t informed of her termination until she received a notice of eviction from the residence provided by Disney for the internship program.
What has Disney said about the suit? See the post. While this is not the first time the company has dealt with workplace discrimination accusations, it is odd that Barash’s first position accommodated the stool and another did not.
TAKEAWAY: The Mouse House (Disney), just like other employers, has an obligation to accommodate employees who are eligible and request accommodation – unless there is an undue hardship to Disney. Stay tuned.
In the post on Thursday 1/11/2024, we read about a very, very expensive emoji. A court has been stuck with a tough, maybe impossible question: What does 🌝 mean? Let’s check the background. In the summer of 2022, Ryan Cohen, a major investor in Bed Bath & Beyond (“BB&B”), responded to a tweet about BB&B with that side-eyed-moon emoji. Later that month, after Cohen (whose probable claim to fame is noted in the post) disclosed that his stake in BB&B had grown, the stock price then shot up. So later that week Cohen sold all of his shares and walked away with a reported $60 million gain. But now shareholders are suing him for securities fraud, claiming that Cohen misled investors by using the emoji to mean something in the stock area (which is noted in the post). The class-action lawsuit with has now included legal arguments such as: “There is no way to establish objectively the truth or falsity of a tiny lunar cartoon” (which Cohen’s lawyers wrote for the purpose noted in the post). The court did not dismiss the suit, but rather held that “emojis may be actionable.”
This is a somber reminder that emoji—and an older cousin, the emoticon—have infiltrated the corporate world, especially in tech. You may recall that when OpenAI briefly ousted Sam Altman and replaced him with an interim CEO, the company’s employees reportedly responded with a vulgar emoji on Slack. That FTX used them as detailed in the post. And that they are being litigated in a lawsuit alleging that NFT company Dapper Labs was illegally promoting unregistered securities on Twitter based on its use of a certain emoji (again, the details are in the post).
Emoji are omnipresent in the professional world. A 2022 survey from Adobe found that 78% of Gen Z and Millennial respondents said that they used emoji in professional settings, as did more than half of Boomer respondents. Emoji really can speed things up in the office and slapping a ❤️ or a 🎉 on a message can make what would otherwise be a standard, dull communication feel friendly and fun. But reception of emoji is not always smooth. They can have a negative effect as noted in the post from research. And as emoji have become more commonplace, lawsuits include evidence that includes emojis and emoticons. The cases run the gamut from criminal law to sexual harassment (one person sending another a vulgar emoji, for example) to custody suits (with the post including an example of how the emoji figures into the suit). And some emoji get a national spotlight, such as involving Senator Robert Menendez (see the post for details on that).
Emoji are often understood by both the sender and recipient, but they can also be ambiguous. That is true because what device they appear on makes a huge difference (as explained in the post). And one person might interpret an emoji differently than another person, even when they see the same thing on their device. One emoji cost a farmer about $60K – the details of that suit involving a flaxseed contract are in the post.
It may seem funny that a judge must mull over 😂 or 😉 and all of the possible meanings, but emoji are an issue that the court system is actually well-suited to handle. Why? Courts already must evaluate non-textual evidence (such as those listed in the post) and context, in emoji and in language, is key. Emoji are now just part of what can result in a suit – 2023 suits brought mention of heart eyes, eye rolls, devil faces, rats, kisses, and nuts. There is plenty more to come.
TAKEAWAY: Emoji and emoticons may seem innocuous and fun, but they can be very costly; talk to your lawyer before using them in the workplace (or to know where you stand if one is in something that was sent to you).
The post on Friday 1/12/2024 brought us a guide to assistive animals (good for the condo/HOA arena though framed in the landlord-tenant context). While community associations may prohibit (or otherwise restrict) pets, not all animals are pets. Boards (and owners and residents) must know how to distinguish pets from assistive animals which can be either service animals or emotional support animals (ESAs). Service animals are limited to dogs or miniature horses trained to do a specific thing for a person with a disability; examples are in the post. On the other hand, ESAs can be any type of animal (think dog and cat as well as giraffe, goat, lizard, hawk …); they are not trained to do anything, but serve a different function as noted in the post. Neither type of assistive animal is legally considered a pet. So, what does that mean? It means that pet rules don’t apply – other than those relating to noise and picking up after the pet and similar rules. The assistive animals can go everywhere, despite restrictions on pets, because they are not pets.
When it comes to service animals, the owner does not need to disclose that there is one. Further, if the disability is apparent, such as required use of a wheelchair, the association cannot even ask for proof that the animal is a service animal. If, however, the disability is not apparent (is hidden), the association can (and should) as the 2 questions noted in the post but no more. Once that information is in hand (and is verified), the association must allow the animal as a service animal regardless of any pet rules/restrictions.
Circumstances are a bit different when it comes to ESAs. First, an ESA can be an animal the resident already has; it need not be a new animal brought into the unit. While ESAs can be any type of animal, there is a limit as noted in the post. Further, while the association may restrict the number of pets allowed, that may not apply to ESAs. It depends on the purpose(s) the ESAs serve and why any that exceed the pet limit are required.
The presence of service animals and ESAs might mean that there are quite a few animals in a particular unit, and while they may well exceed the pet limit, they may be perfectly legal (and indeed required to be allowed). Denial of a service animal or ESA might land the association in legal hot water, including administrative charges or suits. The outcome of either of those might require the association to allow the service dog or ESA, and also to pay damages and attorney’s fees to the resident who needs the animal.
Pennsylvania association boards (and claimants) should also keep in mind the fairly recent law that provides for penalties against those who falsely claim an animal is an assistive animal.
TAKEAWAY: Condo and homeowner associations should work closely with their lawyers when it comes to requests for accommodation involving service dogs or ESAs.
Finally, in the post yesterday 1/13/2024, we saw that former Detroit Tigers scouts filed suit alleging age discrimination (but implicating employment everywhere). The two former scouts claim they were terminated due to a shift towards analytics and a false stereotype that older scouts were unable to use the analytics. What they seek by way of damages is in the post.
The lawsuit’s allegations go beyond MLB – they highlight the ongoing challenges of age discrimination in the broader employment realm, the impact of organizational shifts toward analytics (and other computer or software uses) and the treatment of older employees who may not have ‘grown up” with such tools. The number of MLB scouts affected, as claimed in the suit, is in the post. The suit sets forth a claim of disparate treatment (which, again, can happen in any work environment, not just MLB). The Detroit Tigers response/comment is in the post.
TAKEAWAY: Employers must be careful not to stereotype workers, especially older workers when it comes to technological advances or changes, but rather to treat all employes the same (and provide accommodation where legally required to do so). An employment lawyer can help keep you on the right side of legal.
York, Pennsylvania 17403