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 1/30/2022 we asked: when does rude behavior cross the legal line? No employer wants a lack of civility or rude behavior in the workplace. And employers aren’t legally liable for that type of atmosphere unless the conduct crosses a certain line. But the line can be hard to draw. Often courts are called on to determine if the line has been crossed; they did in this case. William Peck was an administrator for the city of Tucson, Arizona. He alleged hostile work environment and retaliation under Title VII. Peck made various allegations including, for example, that he heard a co-worker say that a female co-worker’s “dress showed a lot of skin [and] her hair flowed over her shoulders in a sexy fashion.” The same co-worker made many other comments too that are noted in the post (some in company meetings). At one point Peck filed a formal internal complaint about the co-worker. A few months later, a new supervisor “became very critical” of Peck. The supervisor told Peck he was “very frustrated” and that Peck was not following his directions; the new supervisor also took action as noted in the post. Peck again followed procedure (what he did is in the post). And it got worse from there (yeah, hard to believe, but see the post). Months later, the city issued Peck a notice of intent to discharge and he sued, alleging a hostile work environment on the basis of his sex. He added a claim of retaliation. A federal district court granted the city’s motion for summary judgment. Why it dismissed is in the post. Peck said his co-worker’s comments were “sexually charged commentary.” But the court said … what is in the post. Peck also argued that the co-worker discriminated against him because he did not conform to male stereotypes. The court reminded that Title VII is not a “general civility code.” The court also addressed the other allegations as described in the post. Peck appealed the dismissal. The appellate court affirmed, finding that harassment is not discrimination based on sex just because the words used have sexual connotations. It also explained how the other allegations did not meet Peck’s burden of proof (see the post). The appeals court did find one comment to be harassment, but not actionable for the reasoning in the post.
TAKEAWAY: Facts matter – and can make or break a case. Know what must be proved to support an hostile environment claim.
The post on Monday 1/31/2022 reminded us: Don’t go down with the ship: sham review process sink’s Navy’s religious exemption policy (but need not sink yours). You may recall that a group of Navy Special Warfare servicemembers filed suit after the Navy denied their requests for religious accommodations from the COVID vaccine mandate. In early January a federal court upheld the servicemembers’ challenge, characterizing the Navy’s religious exemptions process as mere “theater.” Let’s delve a bit deeper. Since imposing its COVID-19 vaccine mandate in August 2021, the Navy has received over 3,000 requests for religious exemptions. It has approved none of them. In fact, the Navy has not granted a single religious exemption to any vaccine requirement in 7 years. And what is the Navy’s process when it receives a religious exemption request? See the post. The judge reviewed the process and explained why it does not meet legal muster (see the post). While the case was decided under the First Amendment and the Religious Freedom Restoration Act (RFRA), which do not have direct application to private employers, you should still pay attention. Why? See the post.
TAKEAWAY: Have a valid legal policy in place to deal with any request for religious exemption from a COVID (or other) vaccine mandate and follow it each and every time.
The post on Tuesday 2/1/2022 was about condo/HOA questions: can owners access a master list of residents? Do you know what PA law provides? Often associations maintain owner (and resident) rosters including name, mailing address, unit identifica-tion, telephone number and email address. But are owners entitled to see that roster in its entirety? See the post as to FL law. But what about in PA? Like FL, there are statutes providing that “All financial and other records shall be made reasonably available for examination by any unit owner and his authorized agents.” But what does “reasonably available” mean? See the post for one example.
TAKEAWAY: Know what information can or should be available to owners – consult a community association lawyer.
The post on Wednesday 2/2/2022 told us that SoulCycle settles lawsuit alleging pandemic was simply excuse for pregnancy discrimination. The suit and the actions of the company that led to the December settlement should serve as a lesson to employers on parental leave policies, terminations, and reductions in force – in addition to the danger of using COVID-19 as a blanket excuse for all manner of adverse employment actions. So what happened? In August 2020, former SoulCycle executive Jordan Kafenbaum filed suit (against the company and several leaders) alleging that it used COVID-19 as pretext when it terminated her employment 32 days into her maternity leave. Kafenbaum brought claims under the FMLA, Title VII, Pregnancy Discrimination Act, and NY law. SoulCycle disputed the accuracy of many of her allegations. What she alleges it did – see the post – began shortly after she announced her pregnancy to her supervisors. Kafenbaum says that at one point her boss said the company would need to transition her to a new role. The company terminated Kafenbaum’s employment in April 2020; she says it provided inconsistent reasoning for the action. Many of her allegations are noted in the post (and include gesturing of sexual acts and male employees using derogatory terms describing paternity leave – read for yourself). In December 2021, the parties reached a settlement and the lawsuit was dismissed. And what can you learn from the suit? Ensure you have solid policies in place – and apply them evenly. Focus on training, training, training – so that the (in)actions of employees don’t put you in legal hot water. And the other things listed and detailed in the post.
TAKEAWAY: Take adverse action only when on firm legal footing and be able to support the basis for the action in case of suit – consulting an employment lawyer is a good first step.
In the post on Thursday 2/3/2022 we saw that Walmart was hit with a proposed class action suit over female drivers’ uniforms. Interesting case that can apply to so many workplaces, so pay attention .According to the new federal suit, female truck drivers face discrimination on a daily basis. The EEOC would not take action so suit was filed. Webb has worked for Walmart as a driver since July 20, 2020. She alleges that drivers on the job who fail to wear clothing authorized by the company’s uniform policy can be fired right away. And what is the policy? See the post. And why can’t the female drivers wear the company-provided uniform? Yep, see the post. Webb also alleges that she requested Walmart to reimburse her for out-of-pocket expenses to purchase multiple pairs of female pants and shorts to wear for work, but the request was denied. Which then leads to more costs for female drivers as noted in the post (and suit). The company did issue a statement after suit was filed; it is in the post.
TAKEAWAY: Treat all employees doing the same job in the same way – do not discriminate on the basis of sex. Get legal advice to ensure compliance.
The post on Friday 2/4/2022 noted that after underground vault dispute, Kim Kardashian is dealing with yet another legal filing with neighbor. Ding: Round 2! A few months ago, Kardashian faced some legal trouble with her neighbor. The dis-gruntled neighbor had decided to file for a restraining order against their homeowner’s association to block Kardashian from building several alleged underground complexes – including a vault, parking garage and wellness center among them. What purposes did the neighbor cite to support her request? See the post. Now the same neighbor has yet another bone to pick with Kardashian in the latest filing. This time, neighbor Sarah Key filed for an injunction against the Association. The basis for this suit is also in the post Perhaps this suit will have a better outcome than the vault suit (which the judge denied – why it was denied is in the post) so Kardashian can continue construction at least until an evidentiary hearing in January.
TAKEAWAY: Nobody is immune from having to comply with an Association’s governing documents. Know your rights and obligations; get advice from a community association lawyer.
Finally, in the post yesterday 2/5/2022, we learned that a fired Philadelphia Parks & Recreation worker alleges FMLA was illegally delayed. Hmmm. James Ditsche filed suit mid-December in federal court alleging violation of the FMLA. Ditsche began working for the Parks Dept. in August 2014 as a plumbing and heating maintenance worker. He alleges that in March 2021, he requested FMLA leave to help his elderly mother who was very ill. The process he says the City followed is noted in the post along with the other things it did improperly. And why does all of that matter? Ditsche says it all resulted in him having to leave his shift early to care for his mother and to be falsely terminated. Stay tuned.
TAKEAWAY: Know who must do what under the FMLA – get assistance from an employment lawyer to ensure you do it right.
York, Pennsylvania 17403