Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 11/10/2024 noted transgender employee harassed on Day 1 of work and fired on Day 2, EEOC claims. The claim was made against the owners of a Holiday Inn Express in Jamestown, New York in a suit filed September 25th for alleged created and failure to remedy a hostile work environment.
The suit was filed against Boxwood Hotels, LLC and associated entities. The harassment allegedly began on the employee’s first day of work when a housekeeping manager “repeatedly and intentionally misgendered and dehumanized” the plaintiff. The employee reported that conduct to the hotel’s front office and general managers, who said they would speak to the supervisor. What the employee was told the next day is in the post. The employee then suggested a meeting to discuss the subject, but management declined. And the general manager made the statements noted in the post.
As a result, the EEOC brought suit under Title VII for discrimination on the basis of sex. This suit follows on others filed this year by the EEOC targeting workplace harassment against transgender employees. An example of a July 2024 settlement in another such suit, and the gist of yet another such suit which remains pending, are described in the post.
What an employee must show for a Title VII harassment claim is described in the post. To avoid liability, an employer must then show that it reasonably tried to prevent and promptly correct the harassment and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer. Within that framework, the EEOC alleged here that the employee brought their complaint to hotel management as well as InterContinental Hotels Group, the company which licensed the franchise. What IHG said is in the post.
The EEOC stressed that preventing and remedying discrimination against LGBTQI+ individuals is a key priority. It also published harassment enforcement guidance earlier this year which includes the U.S. Supreme Court’s 2020 Bostock decision establishing that discrimination on the basis of sexual orientation or gender identity constitutes sex-based discrimination under Title VII. The guidance is described more in the post.
TAKEAWAY: Employers must not treat LGBTQ+ persons differently based on their sexual orientation; doing do puts them at risk of legal liability.
The post on Monday 11/11/2024 was about the first PWFA settlement: employer pays $47K. The train has now left the station. The agreement is the first, but surely not the last, settlement resolving a Pregnant Workers Fairness Act (PWFA) complaint made to the EEOC (given that other suits have also been filed). Let’s take a closer look.
On Sept. 11, ABC Pest Control, Inc., a pest control services provider in Florida, agreed to pay $47,480 in damages to settle a PWFA complaint. The charge claimed ABC Pest Control fired a pregnant employee after she requested a reasonable accommodation to attend monthly medical appointments for her pregnancy. She then filed a pregnancy discrimination charge with the EEOC. This actually settled as part of the conciliation process. The settlement involves more than just a monetary payment. It includes ABC appointing an EEO coordinator, revising its employment policies to include making reasonable accommodations under the PWFA, and the other things listed in the post.
Unlike ABC, other companies did NOT settle as part of conciliation, so the EEOC filed suit. The first PWFA lawsuit was filed on Sept. 10 against Wabash National Corporation, a national producer of semi-trailers and other commercial trucking equipment. It allegedly failed to provide pregnancy-related accommodation to an employee who worked as an assembler and more as in the post. Wabash’s action caused the employee to fear for the health of her pregnancy, which led her to resign (when she was nearly eight months pregnant). The EEOC charged that Wabash’s conduct violated the PWFA and also Title VII and the ADA.
But that’s not all. Two more pregnancy discrimination lawsuits were recently filed by the EEOC alleging PWFA violations. In the suit filed in Alabama, the EEOC alleged that Polaris Industries, a manufacturing company, refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments (and more as detailed in the post). The employee resigned to protect her pregnancy and filed a charge with the EEOC.
The second suit filed by the EEOC alleges that a specialty medical practice in Oklahoma engaged in pregnancy discrimination by refusing to let a pregnant medical assistant sit, take breaks, or work part-time, even though the woman’s doctor said the accommodations were needed to protect the worker’s health and safety during the final trimester of her high-risk pregnancy. What the practice did instead is described in the post. She then filed a pregnancy discrimination charge with the EEOC.
A recap of the PWFA is in the post (in case you’ve forgotten since it is a pretty new law). It became effective in 2023 – so it’s a relatively new federal law. There are (already) some best practices for employers when it comes to pregnant employees. First and foremost is that managers now need PWFA training along with all of their other training. What that training should involve includes getting HR involved as soon as learn an employee is pregnant or when a pregnant employee makes any accommodation request and the other items listed and described in the post.
Employers must also think about how they can accommodate pregnant employees. Setting this out in a policy is a good idea. Some examples of (easy) accommodations include allowing an employee to carry water and drink, as needed, in the employee’s work area, allowing additional restroom breaks, and the other things listed in the post. The EEOC also has provides examples of some accommodations; some are listed in the post.
TAKEAWAY: Just as with the ADA, employers must know their accommodation obligation (and the process for it) under the PWFA. Get an employment lawyer involved early in the process.
The post on Tuesday 11/12/2024 told us the EEOC sues Shimmick Construction Company for discrimination and retaliation. Why? It allegedly engaged in sex-based discrimination against a female employee and forced her to resign after she cooperated in a subsequent investigation.
This all took place at the US Army Corps of Engineers’ lock replacement project in TN. Shimmick is the general contractor based in CA that specializes in large-scale water projects. Allegedly men working at the site cursed at the woman and refused to follow her instructions, despite her position. What that was, and more that happened, is in the post. The woman’s fiancé, a former employee at the site, filed a complaint with Shimmick that triggered an investigation. What a supervisor then said to the woman is in the post.
The EEOC filed suit Sept. 25th in federal court. Not surprisingly, Shimmick, disputed the narrative in the lawsuit. What it said is in the post. The relief sought by the EEOC, as well as its statement, are also in the post.
Employers should note that the EEOC has increased its focus on discrimination in construction during President Biden’s administration. The EEOC issued an anti-harassment guide for construction contractors in June (which is linked in the post).
TAKEAWAY: NO matter the industry, don’t allow harassment or retaliation in your workplace (or among your workers). Just don’t.
The post on Wednesday 11/13/2024 noted that (most) condo and homeowner associations must file the FINCen BOI form. Hopefully your head is not spinning at this point.
The Corporate Transparency Act (CTA) requires that certain entities file annual reports with the Financial Crimes Enforcement Network (FINCEN) by December 31, 2024. The Community Associations Institute (CAI) filed suit in September in federal court in Virginia, seeking a declaration that the CTA does not apply to condo and homeowner associations. But in a decision issued Oct. 24, 2024, the Court said that the CTA DOES apply to condo and homeowner associations. So what does that mean? See the post.
Given that decision, and even though the case is still pending, let’s look at how association boards can comply with the CTA. Boards can do it themselves or pay a third-party vendor to assist. At its most basic, the CTA requires that most entities, including most condo and HOAs, file a “BOIR,” the Beneficial Ownership Information Report. The are some exceptions to who must file and many are described on the FINCEN FAQ page as discussed in the post.
Usually the individual owners need not be disclosed as beneficial owners unless one or more owns at least 25% of the units. But there are those who almost always will need to be disclosed: directors and officers. What that is so is in the post.
Associations can do the BOIR filing themselves or contract with a third-party vendor. If they choose to do it in-house, then one person can collect the required information from all directors and officers, prepare and file the BOIR, and maintain the information (using the process described in the post). Another way to do it is described in the post (with relevant links) and is becoming favored by Board members. There is no charge to file the BOIR with FINCen.
Associations can also contract with third-party vendors to file the BOIR for them (and help keep it updated with all changes in beneficial owners in the future). Just make sure the vendor is vetted. The FINCen website lists some warnings of scams, including that vendor correspondence that references a “Form 4022” or “Form 5102” is fraudulent and more as detailed in the post.
Associations must keep in mind that when there is a change in board members or officers, or a person or entity owning 25% or more of the units, a revised BOIR must be filed. See the post for the deadline for that filing.
TAKEAWAY: Unless your association was not formed through a filing with the Dept. of State or is an 501(c) organization, it must file the BOIR. Best practice is also to amend the Declaration to include a procedure for CTA compliance – work with your community association lawyer on this.
In the post on Thursday 11/14/2024 we got a lawsuit update regarding popular New York concert venue – yes this involves an HOA! If you’re an avid concert-goer in the Hudson Valley, then at one point or another you probably traveled into Queens to catch a show at the former home of the U.S. Open turned historic NYC venue. Well there’s been some controversy surrounding that venue over the past year or so, and now a judge has dismissed five of seven claims in a lawsuit by the local community against the stadium. Let’s take a closer look.
The legal battle over open-air concerts at the Queens-based Forest Hills Stadium seems to stem from the local community’s homeowner’s association.
According to several news outlets, and (unusually, a billboard), the Forest Hills Gardens Corporation (FHGC) filed suit in 2023 against the stadium’s owner, The West Side Tennis Club, to ‘shut down the summer concert program at the former site of the U.S. Open. The FHGC represents about 900 property owners. What it said about the basis of the suit is in the post.
The judge dismissed five of the seven claims alleged by FHGC after finding that it did not allege that the harm is isolated to its members as opposed to the larger community. In the suit, 3 of the plaintiffs talked about the noise levels from the shows held at the Queens venue. What they said is in the post. The stadium’s attorney said it has tried to be a good neighbor and was hoping for dismissal of the rest of the claims (including public and private nuisance). How the FHGC responded is in the post.
How famous is the stadium? Over the past few years, acts like Arctic Monkeys, Neil Young, and others listed in the post have been on the stage there.
TAKEAWAY: It doesn’t matter how famous a person or place might be; if there is a Declaration or other legal document setting forth restrictions, then (barring any contrary provision of the law) they should be upheld.
The post on Friday 11/15/2024 asked: Does ADA apply to web-only businesses? Apparently NY law is in flux; but what about PA law? The Chief Judge of a federal trial court in New York recently issued a decision dismissing an ADA website accessibility lawsuit because the website was not associated with any physical location where goods and services are provided to the public. The decision in Mejia v. High Brew Coffee Inc. conflicts with the decisions of many other judges in the same court who have held that website-only businesses are covered under the ADA. The post discusses the prior decisions. After some of them came out holding that web-only businesses are not covered by the ADA, there was a 43% decrease in the number website accessibility filings in that court.
In High Brew Coffee, the plaintiff alleged that he is a blind screen reader user who could not purchase “a twelve pack of Double Expresso flavored coffee” on two occasions because the website was inaccessible. After reviewing the split among the U.S. Courts of Appeals on whether the ADA covers websites that have no connection or relationship to physical places of public accommodation, the Chief Judge analyzed the Second Circuit decision noted in the post (as well as what it stands for). The Chief Judge agreed with those judges who interpreted the Second Circuit case to hold that the ADA requires a physical presence. The Chief Judge also looked to the history of the ADA and the meaning of “places of public accommodation” as part of whether a physical location is required.
What is interesting is that the Chief Judge was not originally assigned to the case; it was reassigned to her after the defendant’s motion to dismiss was fully briefed. While it cannot be known whether other judges will follow this lead, the decision is predicted to cool the website accessibility lawsuit frenzy that has overtaken New York’s federal courts. Since the Chief Judge’s decision was issued, more plaintiffs have sued in state court than federal court. Other jurisdictions, including Pennsylvania and those listed in the post, have also seen increased state-court website accessibility suits. But the High Brew Coffee plaintiff may appeal the Chief Judge’s decision and then the Second Circuit could provide more clarity.
TAKEAWAY: it makes a difference if a physical location is required for the ADA to apply. Know the law before you file suit or defend a suit.
Finally, in the post yesterday 11/16/2024, we asked: does supervisor’s “weirdness” show nurse lost job because of FMLA leave? Yes, facts matter.
Keep in mind that when an employee sues for FMLA retaliation, they must show that the exercise of FMLA rights caused the employer to take negative action. There are usually two ways to explain what happened in any case. A case involving a fired hospital worker shows the differences.
A nurse supervisor for a hospital was “a very high-functioning operational leader,” according to the hospital. How it complemented her is in the post. The employee took FMLA leave from October – December 2020 for gallbladder treatment and recovery from COVID-19. When she returned to work in January 2021, she said, “a weirdness” infected her relationship with her direct supervisor, a nurse manager. In February 2021, things changed as discussed in the post. The employee’s direct supervisor consulted with an HR representative, who was not aware that the employee had taken medical leave. What the HR rep recommended is in the post. The employee then sued the hospital for FMLA retaliation. The federal trial court dismissed the case and the employee appealed to the 3d U.S. Circuit Court of Appeals (which governs cases in Pennsylvania). That court held that to show FMLA retaliation, an employee must demonstrate that: 1) she invoked her right to leave; 2) she suffered an adverse employment decision; and 3) the adverse action was causally related to her invocation of her rights. Did she? HINT: your choices are:
A. No. A lot of time passed between her leave and termination, and the HR representative didn’t know she had taken leave.
B. Yes. She was a good employee and her manager became negative right after she returned from leave.
If you chose A, you agreed with the decision in Coleman v. Children’s Hospital of Philadelphia issued October 15, 2024. The court noted that temporal proximity can show a causal connection. The time in that case (noted in the post) was too great to support an ADA retaliation claim.
The court said that while the employee did point to other things that she said showed reprisal, the court did not buy it. See the post for details on the facts of the case. The 3d Circuit affirmed the trial court’s dismissal of the case on the basis noted in the post.
TAKEAWAY: While an employee need not prove the underlying discrimination or other claim to show reprisal (retaliation), s/he must still show a connection to the negative (or adverse) action. Consult an employment lawyer.
York, Pennsylvania 17403