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 4/15/18 we asked: Surprise lawsuit? Check EEOC paperwork. It is oh-so important to ensure the same allegations throughout the matter – from administrative filing to judicial (court) filing. In the post, Lisa was hired temporarily, then full-time, but later fired when the employer discovered she did not meet the qualifications for the position. She filed a charge with the EEOC. The basis for her charge is in the post. She later filed suit. The suit was dismissed.
TAKEAWAY: Check paperwork carefully – make sure all legal T’s are crossed and I’s dotted or assert the defense.
The post on Monday 4/16/18 was about the certainty of publicity of a newly-filed lawsuit. We suggested employers take heed. Yes suits are filed all the time against individuals and corporate entities. And the media write about the suits. But is there ever any follow-up after the initial filing? Rarely. As noted in the post (by my good friend Dan Schwartz), the public gets the juicy allegations and, usually, nothing in response. Employers must be prepared for this day. The post gives a tip as to how to do just that.
TAKEAWAY: It is not easy to try a suit in the public eye, but today that eye is all-seeing and forces an employer to do just that. Be ready. Have a plan in place that has been vetted by legal counsel.
In the post on Tuesday 4/17/18 we read that bible study was banned by a condominium association. And now the owner is putting up a fight. Is this a religious issue or a rules issue? Or both? Planned communities (condominium and single-family units in a homeowners’ association) have governing documents – covenants, Bylaws and rules – by which residents must abide. The governing documents can provide for who can use common property owned by the Association. The issue in the post was whether the association could legally do what it did.
TAKEAWAY: Associations should have in place governing documents that do not reference religion or any other protected characteristic – and be prepared to defend against a lawsuit if an action is take that implicates a protected area.
The post on Wednesday 4/18/18 told us that Lowes must pay after yanking ADA accommodation. How to make people not feel at home. So what happened? A supervisor lost the use of his right arm after a spinal injury. He was still promoted and allowed to delegate certain things. Then, 6 years later, Lowes pulled the accommodation. See what happened next in the post.
TAKEAWAY: Before rescinding or changing an accommodation, especially a long-standing one, check with legal counsel as to the possible ramifications and act accordingly.
In the post on Thursday 4/19/18 we saw that a short ADA accommodation delay is no problem. But be reasonable. Yes the interactive accommodation process is to start upon a request being made or the employer becoming aware of the need for accommodation. But knowing what to offer, or bring to the table, isn’t always known immediately. The post gives one example of how an employer might deal with a situation like that and still meet its legal obligations.
TAKEAWAY: Fulfill the legal obligations under the accommodation process, but do it right – so take the (reasonable) time necessary to figure out what is right in the circumstances.
The post on Friday 4/20/18 told us a federal appellate court says prior salary can’t justify the gender wage gap. Pay attention. While this court decision is not binding on us here in PA, it may have kicked open the door to future rulings that do hold sway in PA. The court said that an employee’s prior salary – either alone or in a combination of factors – cannot be used to justify paying women less than men in comparable jobs. The decision (see the post) noted the split among courts (with the Tenth and Eleventh Circuits ruling as did the Ninth here, and the Seventh ruling to the contrary). The rationale for the decision is in the post and is sensible on both common-sense and statutory-interpretation bases.
TAKEAWAY: Don’t base an employee’s salary on what s/he made at a prior job if that would make the current pay higher than someone of the opposite gender doing the same job.
Finally, in the post yesterday 4/21/18 we saw rulings in favor of Title VII protections for LGBT workers are on the rise. In the oft-changing legal landscape of LGBT workers and their protection under the law, courts are slowly moving to acknowledge equal protection on the basis of Title VII. Recently, 2 federal courts (the Second and Sixth Circuit Courts of Appeal) have ruled that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. The post lists the other federal appellate courts that have ruled similarly on those 2 issues. The EEOC also has a position on the issue (as noted in the post). PA has no governing law or judicial interpretation on this yet, nor does the US Supreme Court, but it is only a matter of time.
TAKEAWAY: Until a definitive ruling that governs PA workplaces, just don’t do it. Treat all employees and applicants the same and judge work performance, not the person doing the work.
York, Pennsylvania 17403