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 2/18/2024 asked: What is ‘disparate impact” – and why do you need to know? You probably know that many Title VII cases claim that an employer intentionally discriminated against an employee or applicant. But there is also another claim that employees and applicants can raise: disparate impact discrimination. This means that even facially nondiscriminatory policies and practices can violate the law if they have a disproportionate negative impact on a protected class. So even what seems to be a neutral, nondiscriminatory practice or policy can result in employer liability under Title VII.
In a recent ruling, a federal appeals court rejected a disparate impact claim in a case involving work as a firefighter. The plaintiff was Catherine Erdman; she applied for a job as a firefighter for the city of Madison, Wisconsin. The city eliminated Erdman from its 2014 recruiting class after she was unable to achieve a passing score on the department’s physical abilities test. At that time, Erdman had about seven years of experience as a firefighter for another city, which named her its firefighter of the year in 2014. Details on the test are in the post. Only four of the 28 women (of 499 total people in the class) successfully completed the test and all were hired. Erdman was not one of them. She sued under Title VII, alleging that the test had an unlawful disparate impact on women. What else she argued is in the post.
A lower court agreed that the test had a disparate impact on women, but it also determined that the test Madison used was job-related and served legitimate city needs and that Erdman did not show that her proposed alternative would serve the city’s needs as well as its incumbent test did. Erdman appealed.
The appellate court affirmed. First it agreed that Erdman had established a preliminary case of disparate impact. It then noted that Erdman had conceded that the city’s test was job-related and consistent with business necessity. Her legal argument as to disparate impact is noted in the post. The question on appeal was whether Erdman’s suggested alternative was “substantially equally valid.” The city argued that the answer was no.
The appeals court agreed with the city. Its analysis and basis for holding are all in the post.
TAKEAWAY: Employers can defend against a disparate impact claim by showing that the challenged practice or policy is job-related for the position AND consistent with business necessity. However, if the plaintiff then shows there is another way to satisfy its legitimate interests without use of the challenged practice/policy, then the employer’s defense has been overcome.
The post on Monday 2/19/2024 told us a former Lycoming County employee sues the commissioner for violation of the FMLA. The former HR Director sued the county commissioners for wrongful termination and violation of the FMLA. The suit was filed in federal court in the Middle District of Pennsylvania. Jessica Segraves is seeking unspecified damages for lost wages and benefits, emotional distress, and humiliation.
Segraves claimed in the lawsuit that her male coworkers were treated more favorably and had stated at one point after a female coworker left that they needed to hire a male due to “female drama” in that department. AUTHOR’s HINT: This is never a good or smart statement to make.
Background on Segraves, her medical condition, and her FMLA leave application is in the post. The FMLA allows employees to take unpaid, job-protected leave for specified family and medical reasons. Segraves said that she used FMLA time twice last summer — as noted in the post. But by Aug. 11, Segraves found herself unemployed. Commissioner Metzger called Segraves into the conference room that day the other commissioners were also present. What Commissioner Mirabito told Segraves is also in the post. The commissioners offered Segraves a separation agreement along with 4 weeks’ severance pay, but they did not tell her why she was terminated. Given that Seagraves allege that she had never been disciplined, whether verbally or in writing, that is a good question. Commission Mirabito said that too. But the commissioners said nothing until Mirabito made a comment (that is in the post). Then Mirabito allegedly escorted Segraves to her office and claimed he was sorry she was being terminated but added she could find a position in the private sector that would be less stressful. The suit alleges that Mirabito’s statements are evidence the commissioners terminated Segraves due to her disability and approved use of FMLA leave.
The suit points out several examples of how the commissioners treated male coworkers more favorably; that is in the post. Neither of the male coworkers mentioned in the suit had a disability or were on FMLA.
But Segraves also points out in her suit that when a female coworker left the department, Mussare and Metzger made statements saying, “We need to get a male in that position” due to “female drama” in the department, which they felt a male would help correct. To the contrary is how Segraves alleges show he was treated by the commissioners (see the post) and which statutes were (allegedly broken).
What was Mirabito’s comment after having been served? See the post.
TAKEAWAY: Employers cannot discriminate against employees (or applicants) on the basis of a protected characteristic, including sex.
The post on Tuesday 2/20/2024 told us that county HOA complaints from 2023 continue to concern residents. As they should … Since 2021, Richland County has seen an increase in HOA complaints, ranking them the second highest in the state in 2023. According to records from the Department of Consumer Affairs, 10 of the county’s 56 HOA complaints from 2023 were written specifically about the Lake Carolina Master’s Association. Some residents had filed complaints as far back as August 2023, pertaining to an abandoned property and walking paths that need repairs. “I was told several times repairs would be made,” said Lake Carolina resident Todd Cattaneo. How long has he been at this issue? See the post. And now he’s skeptical that anything in the community will be resolved. Cattaneo said, “It’s a public safety hazard in our community.” Similarly, Brandon Elliott lives near an abandoned property in the community. He said the property is not being maintained and he feels it is bringing crime into the neighborhood. “When one property is allowed to fall apart, it attracts crime [and] vandalism,” Elliott said. “We’ve seen vandalism happening in various parts of the neighborhood now.”
The Lake Carolina Master’s Association is the HOA responsible for overseeing and managing concerns in the development. Community Association Management Services (CAMS) has been hired to help the Master Association’s Board manage day-to-day operations in the neighborhood. CAMS and the Master Association said in a joint statement how they plan to establish an advisory committee of homeowners. What will that (hopefully) do? See the post. And the timing of that committee? Again, see the post.
TAKEAWAY: Owners pay assessments and expect that, in return, the homeowners’ (or condo) association will provide the required level of service; either can enforce the Governing Documents and applicable state law. A good community association lawyer can help.
The post on Wednesday 2/21/2024 asked: credentialism and disparate impact discrimination: is that degree really needed? The job search process was frustrating for Mateo. He had his coder certificate and ten years’ experience as a security and IT specialist, but when he applied for certain roles, even with his current employer, he would automatically get turned down in the application process just because he didn’t have a college degree. Mateo isn’t alone in this experience. More than 70 million workers in the US, over half of the country’s workforce, do not have a bachelor’s degree, but between 2008 -2017 over 70% of new US job postings required a college degree. Many non-degreed workers – like Mateo- have acquired abundant skills and know-how through a wide variety of paths, including those (both common and not) listed in the post. But credentialism, also referred to as the paper ceiling, analogous to the glass ceiling, creates barriers for these skilled workers to get meaningful jobs.
Ass one would expect, credentialism hits communities of color and rural communities particularly hard. Some pretty dismal (but not surprising) statistics are in the post. And all of the lost jobs – like registered nurses, managers, and administrative assistants – at one time could have provided a pathway to the middle class. Sadly, a non-degreed, skilled worker who started their career in 1989 would—on average—need to work 30 years to catch up to the wage a college-educated worker earned on the first day of their career. Degree requirements have become a proxy for job readiness – but is that legally sound?
Making a college degree a standard requirement for available positions may implicate Title VII or other anti-discrimination statutes if it creates an unlawful adverse impact. And what does that mean? See the post. The US Supreme Court first recognized the adverse impact theory of discrimination under Title VII in Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). That case was brought by African-American employees who were barred from transferring positions based on the employer’s requirement of a high school education or passing an intelligence test. The Court found that, although the requirements were applied fairly to employees of all races, they were a discriminatory barrier to employment as a result of the outsized effect on African-Americans.
The EEOC noted in an Informal Discussion Letter (2010) that if a claimant could show that the strict degree requirement “would result in a significantly disproportionate exclusion of protected racial minorities then an employer could be liable unless it could show that the requirement is job-related and consistent with business necessity.” Federal enforcement agencies like the EOC have a rebuttable bright line as evidence showing adverse impact – see the post for an explanation. And how does an employer rebut a disparate impact claim? By proving that the policy or practice has a “legitimate business justification”. To establish a valid business justification, a company must show that the policy or practice furthers its legitimate employment goals in a significant way. How Duke Power could have done that is noted in the post. But even if the employer shows business necessity/justification, the plaintiff can still prevail by showing other policies or practices would be at least as effective at meeting those business interests as the chosen practice but would have less of an impact on the protected group. And the ultimate result after that? See the post for an explanation.
So let’s bring this back around. While there are some defenses, job requirements without a clear relation to the skills required for the position could create the legal risk of a disparate impact claim. Why? Yep, see the post. Here Mateo received a promotion to IT Tech manager even though he still does not have his college degree. Companies should carefully consider whether a college degree is a required qualification for an available position or, instead, if there is an equivalent or superior alternative approach.
TAKEAWAY: If a college degree is preferred, but not required for a position, a degreed applicant should not be given undue weight if other applicants’ experience or skills have a stronger correlation to job success – this might save the employer liability from a disparate impact claim.
In the post on Thursday 2/22/2024, we saw that Walmart settles EEOC sexual harassment suit for $30,000. When an employee makes a complaint about sexual harassment, employers should act quickly and seriously. Title VII of the federal Civil Rights Act of 1964, prohibits sexual harassment in the workplace. A Florida Walmart was sued by the EEOC when it failed to act after a female employee reported that a male employee was making sexual comments about her body. More background is in the post (and seems all too common …). Walmart now has to pay the female employee $30,000 to settle the EEOC lawsuit. But the nonmonetary relief Walmart must provide may be more costly in the long run – that part is listed in the post (and again is not uncommon in this situation). The MeToo movement has given a boost to workers who have experienced sexual harassment and abuse on the job. But many people who experience sexual harassment or abuse on the job never report it. Why? Because of the rampant retaliation against those who do report. Acts like those listed in the post. But the retaliation itself is illegal and employers can be held liable for that too.
TAKEAWAY: Make sure to train employees on the process when sexual harassment or abuse is reported – take it seriously and take action if warranted. Keep your company out of legal hot water by getting an employment lawyer involved early in the process.
The post on Friday 2/23/2024 told us a trio was accused of defrauding homeowners’ association out of tens of thousands of dollars. We wonder where the rest of the Board was, including the Treasurer. And was there insurance coverage? OK, let’s slow down and check the background.
A mother, daughter and the daughter’s boyfriend allegedly defrauded a South Florida homeowners association by stealing money for work that was not completed. Yasnely Pedroso and her boyfriend Yoel Tapanes Fernandez are in jail, accused of stealing from the Westwind Lakes Garden Homes Condo Association. An arrest form states that Pedroso was previously fired from the HOA Board for destroying records, but when her mother, Idoris Pedroso, was elected Board president, she rehired Yasnely.
According to the current HOA president, the board took out a $2 million loan in 2020 to paint homes and fix roofs, and then two years later took out another loan for $400,000. But the work is still not finished. HOA President Iliana Ordaz Jeffries said that she and others in the community started their own investigation and got police involved.
The arrest report details what Fernandez got and how it got into his hands – see the post. A detective wrote that Pedroso asked someone to fabricate an invoice to justify the $42,178 Fernandez received from the HOA, but the witness refused for the reasons noted in the post. Police arrested the couple and they were in court the next day, charged with one count of grand theft, a second-degree felony, and one count of organized fraud. When a detective asked Fernandez if he had any copies of invoices or receipts for the work he performed at the HOA, he stated that he did not remember. While that criminal case will go forward (what happened at the preliminary hearing is in the post), it is the HOA that must try to move on. Jeffries said now they’re left with no money and millions of dollars of debt, but they will try to move forward.
Police still have not arrested Idoris Pedroso, who is still considered at large.
TAKEAWAY: Every community association must have checks and balances in place, more than one set of eyes on the money. And insurance to cover those situations where something still happens.
Finally, in the post yesterday 2/24/2024, we read that PeaceHealth SW Medical Center settles over ADA violations after Vancouver hospital failed to provide sign language interpreter. PeaceHealth will pay a $75,000 fine to the patient, who was hospitalized in March 2020. It will also pay the Department of Justice $10,000 for violating the ADA. And of course there is more to the settlement than just the payment of money – see the post. DOJ said that, “When facing hospitalization and treatment, every patient deserves clear communication about their course of treatment. This settlement seeks to ensure effective communication for each patient.”
And how did PeaceHealth violate the ADA? It did not present a sign language interpreter for the patient, which caused emotional distress. That snowballed as noted in the post. And this was not a one-time thing (again, see the post). Under the settlement agreement, hospital staff will now assess a patient’s communications needs and the needs of the patient’s companion and take further steps as identified in the post. And, just as important, PeaceHealth cannot charge for those services. PeaceHealth has agreed to other actions too as part of the settlement in an attempt to avoid a repeat in the future – see the post.
TAKEAWAY: Remember that the ADA is broader than just the employment arena – it covers access to public service too, so businesses must know their obligations and have a knowledgeable lawyer on stand-by.
York, Pennsylvania 17403