Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 7/25/21 we saw that Agri-AFC, LLC is to pay $40,000 to settle an EEOC disability discrimination lawsuit. Agri is an agricultural retailer that operates 21 locations in 4 states. It hired an employee in 2017 as a driver and ware-house worker at one of its locations. About 2 months after hire, the employee told his district manager that he was taking medication – for what is in the post. After that, the company acted as noted in the post. How that was a(n alleged) violation of the ADA and got the company in hot water is also in the post. Conciliation failed so the EEOC filed suit. Now Agri has settled, agreeing to monetary relief and more as noted in the post.
TAKEAWAY: We’ve said it before, and we will say it again (even later in this blog): train your employees as to what they can and cannot say and do in certain situations, including relative to employee disabilities. Have your employment lawyer conduct the training.
The post on Monday 7/26/21 told us that a teen Steak ‘N Shake worker’s sexual harassment jury award was upheld. The decision from the Sixth Circuit is unpublished but instructive. Hannah Corbin, a teen server harassed by older male workers, had sued. The allegations included being slapped on the buttocks, touched, and more as noted in the post. When the company was made aware of the harassment, and even though some managers witnessed some of the behavior, nothing was done. On appeal, the company contended that the $50,000 punitive damages award was constitu-tionally excessive (given the amount of the actual damages award as noted in the post). To the contrary, the EEOC argued (in its amicus brief) that the punitive damages award was acceptable because it was lower than the $300,000 damages cap under Title VII for a company that size. What the EEOC cited in support of its argument is noted in the post. The appellate court did not buy the EEOC’s argument, noting the limits of Title VII relative to damages awards (see the post). However, the court did uphold the punitive damages award on the basis noted in the post. Corbin lost her appeal for reinstatement of her retaliation claim and to increase her attorneys’ fee award (the bases are in the post).
TAKEAWAY: Whether employee or employer, know what damages are available under a particular law – or just stay on the right side of legal to avoid liability for damages altogether.
on the basis of association –
will this include covid?
The post on Tuesday 7/27/21 told us that the ADA prohibits discrimination on the basis of association: employment post-COVID. As we start to get back to the “new normal”, the effects of COVID-19 will still be felt (as as the delta variant makes more inroads, harshly felt). One thing that will continue is the increase in charges of discri-mination (and litigation) by employees who had to care for family members during the pandemic. The post gives one such scenario: employee works for large company, one with too many employees to be covered by the CARES Act. Employee was an essential employee during the pandemic and could not work remotely. Employee’s young child suffers from asthma and was exposed to COVID-19 at day care. The child was required to quarantine, barred from day care for 10 days, and had significant breathing issues after the quarantine ended, The employee, a sole caregiver, had to stay home with the child. Post-recovery, the employee claims lost job opportunities, penalties for taking off too many days, and exhaustion of paid vacation and having been required to take unpaid leave. These claims are all alleged discrimination because of “association with a person with a disability.” Yes, remember that the ADA covers associational claims – the statutory provision is discussed in the post. Also noted in the post is a recent federal case (from June 2021) on application of the ‘association” theory and statutory provi-sions. So, what should an employer do, knowing that these claims may well be coming down the pike against it? First, find out why employees are tardy or absent BEFORE taking adverse action. See details on this in the post. Next, be careful how you look at who is being cared for by the employee (again, details are in the post). A final consideration for employers is also noted in the post.
TAKEAWAY: Employers cannot be ostriches; they must consider the challenges faced by employees due to COVID-19, including those due to caring for others affected by the pandemic.
The post on Wednesday 7/28/21 told us a Judge orders homeowner to remove flag-pole after violating HOA covenants. Brandon Scott had a flagpole as the centerpiece of his front yard. Not any more. The Association sued for violation of a covenant due to the flagpole and a statute he had in his yard. The story behind the flagpole (and statute) is in the post and is quite touching. But it didn’t overcome application of the association’s restrictions to Brandon.
TAKEAWAY: Life in a condo or homeowners’ association is subject to restrictions, rules and regulations; know what they are, and that they will be enforced, before taking action.
In the post on Thursday 7/29/21, we asked: Is buying into a condo/homeowners’ association a big mistake? The answer depends on so many things and will be different for each person answering the question. Look at pros and cons to make the decision. The post contains a short list of some of each. But first the post talks about what a condo or homeowners association is and does and how people become members. Then the post moves to Pro #1, a protected neighborhood. Sometimes that means that the community is gated; other times it means the community has hired security. It can also mean that neighbors look out for each other. Two more pros are listed in the post. Con #1 is shared resources, often the common elements and amenities, and possibly including roads. These things are great, but they get used by others and the cost of repair and maintenance is a common expense shared by all owners (even if they don’t use the element/amenity). Two other cons are also mentioned in the post. Also mentioned are the typical costs of living in a planned community, but of course the cost varies by the association’s responsibilities.
TAKEAWAY: Know what your rights and responsibilities are as an owner of and resident in a planned community before signing on the dotted line; consult a commu-nity association lawyer to ensure you understand your rights and obligations.
The post on Friday 7/30/21 told us that a senior care provider resolved an EEOC sexual harassment and retaliation case and will pay $250,000 to caregivers. (I bet you thought the money was going to the clients, right?) Joyvida LLC operates as Amada Senior Care; it provides persona care services in several large metropolitan areas. The EEOC filed suit in 2018, alleging a violation of Title VII when the company failed to respond to complaints by female caregivers of harassment and retaliation for reporting the harassment. So, what is the background? Caregivers provided services in the home of 2 clients in 2014; they were verbally and physically harassed by the clients’ adult son. What that entailed is noted in the post (and is not pretty). The caregivers reported the harassment to Amada’s owner and other managers; not only did the com-pany fail to take action to prevent future harassment, but it also retaliated as detailed in the post. The suit was broader than just these 2 caregivers; see the post. Amada agreed to the monetary penalty along with broad non-monetary relief as part of a 3-year consent decree approved by the Court and detailed in the post.
TAKEAWAY: Again, don’t be an ostrich – investigate complaints by employees and take action on those that are well-grounded (while not retaliating against the reporting employee regardless of the outcome of the investigation). Involve an employment lawyer if you are unsure how to proceed.
covid-19 when you
return to the office
Finally, in the post yesterday 7/31/21, we learned how to stay safe from COVID-19 when you’re back in the office. You may be eagerly anticipating reunions with favorite coworkers or worried that cubicle life post-COVID-19 may not be entirely safe. Either way, educate yourself for your health and to protect your colleagues too. Respect your nerves and ease back into “office life”. Respect others and their situations too – some ideas on how to do that are in the post. Consider vaccination if that has not already occurred – the science behind it is summarized in the post. And know that absent a state law to the contrary, employers can mandate vaccination for employees returning to the office, allowing exceptions for medial and religious reasons as noted in the post. There are also some good protocols to keep in mind when returning to the office. For example, even if you are vaccinated, but you feel sick, you should stay home and recover. How this plays out is in the post. Other protocols, including questions about mask-wearing, plastic barriers, air quality, communal coffee pots, and lots more are discussed in the post.
TAKEAWAY: Employers and employees should discuss RTW protocols before it occurs – and also any reasonable accommodations that might be necessary (and even legally mandated) to allow that to happen. Again, an employment lawyer might come in handy.
York, Pennsylvania 17403