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 9/1/19 we learned that prior harassment claims do not eliminate an employer’s use of Farragher-Ellerth defense. First, a refresher. Under Title VII, we know that employers are vicariously liable for sexual harassment by supervisors. However, under the Farragher and Ellerth cases, the Supreme Court allowed a limited defense to that liability if there is a procedure for reporting and investigation of complaints and the employee did not avail him/herself of that procedure. So what is the relevance of that here? Hunt alleged that her night-shift supervisor sexually harassed her; over what period it occurred and when she reported it is in the post. After the employer, Walmart, investigated, she sued. She lost at the trial court and on appeal based on the limited defense. How? Walmart knew of prior complaints against the same supervisor. But how it acted – noted in the post – gave it a defense. Other bases for the decision on appeal are in the post and prove instructive.
TAKEAWAY: Have a policy in place to deal with complaints of harassment and discrimination and follow the policy.
The post on Monday 9/2/19 noted that a court sanctions plaintiff for spoliation of Facebook account. We said that E-discovery can be a land mine – and suggested that you consult counsel to assist you. In the case in the post, the trial court granted a motion for an adverse inference. It all started when Cordova sued the employer – again, Walmart – for discrimination and retaliation. The employer then propounded discovery (as listed in the post). How Cordova responded is also in the post. Next the employer tried to compel further discovery responses for the bases in the post. How Cordova responded is in the post. Well, the smart employer found something and ended up filing its motion. How and why the judge ruled in favor of the employer is in the post.
TAKEAWAY: Facts that can hurt a case tend to turn up – sometimes at the most inopportune time for the person trying to suppress those facts. Just be honest and it will be easier to handle.
The post on Tuesday 9/3/19 taught us that email etiquette can prevent, and help you defend, lawsuits. So what are some of the tips to assist you? First, size does matter. Don’t bury something in a lengthy email that might not be read completely by others; that buried tidbit might be the most important thing that is said. Next, timing is everything. Beware how employees may act if the supervisor sends an email after hours and the wage ramifications – and see the post for a workaround. Other tips are in the post and worth reading.
TAKEAWAY: Assume that whatever is written, in whatever manner, will see the light once a charge or suit is filed; make sure that writing supports your position.
The post on Wednesday 9/4/19 gave us a new way for community associations to mow their lawns. Most associations, whether condo (attached homes) or single-family, detached homes, have a responsibility to maintain at least some grassy areas, often including lawns. The association can either employ maintenance personnel to mow or hire a contractor, right? Yes, but … There is another option as in the post. Don’t laugh; this is a cleaner way to fulfill the responsibility (and might be cheaper too). Would your association allow what is in the post?
TAKEAWAY: Different strokes for different folks – as long as the maintenance responsibility is fulfilled.
In the post on Thursday 9/5/19, we saw that reference info comes back to bite ex- employer (a PA state agency). See if you think the court got it right. Cherie worked for the PA Department of Insurance; she alleged sexual harassment and filed a PHRC charge for retaliation. The parties settled (some of the terms are in the post). What was and was not covered by the settlement is also in the post. It all seemed good, until the employer veered from normal protocol – see the post. And there was more, involving an attorney representing the employer, and how s/he fit into the situation. The post explains that a bit. When Cherie didn’t get a job, she sued. The outcome turned on the terms of the settlement and the parties’ actions as in the post.
TAKEAWAY: When settling a (potential) case, make sure it is feasible and does not violate the spirit of what it is trying to achieve. Involve an employment lawyer for compliance.
The post on Friday 9/6/19 was about the latest developments in Robles v. Domino’s – a crucial ADA website accessibility case with broad implications. The case was filed by legally blind or visually impaired plaintiffs under the ADA. Domino’s filed a writ of cert to the US Supreme Court. So what happened before that? The trial court dismissed the plaintiffs’ claim – the basis is in the post. On appeal, the decision was reversed and the case sent back for determination of the matter noted in the post. Then came the writ to SCOTUS. The question was very succinct and is stated in the post. Stay tuned.
TAKEAWAY: Website accessibility is a huge issue for any entity; a decision by SCOTUS could bring clarity to the cloudy issues. Until then, the safest option is to make all websites fully accessible.
Finally, in the post yesterday 9/7/19, the issue was that your (former) employee filed an EEOC charge, so now what? Yes you should contact your employment lawyer immediately upon being served with the charge. Note that this applies to charges filed with a similar state or local agency too. First, there is no filing fee, and often there is no attorney involved, so that means it is a free process for someone to initiate a complaint/charge. After a charge is filed, it is assigned to an investigator. What happens next is laid out generally in the post. What you can and cannot do relative to other employees during and as part of the investigation are also in the post. It might be worth it to an employer to settle the matter, even if it believes there is no merit, because that takes less resources than defending the claim at this stage (or in court if it moves there next). If it doesn’t settle, the likely next step is as noted in the post, along with some timeframes. While much of this is procedural, it is important to do and say the right things at the right time. Therefore, taking the steps in the post is recommended, with the first being to contact an employment lawyer.
TAKEAWAY: Charges get filed. By former and current employees. Know how and when to respond and what other steps to take – and stay legal with the assistance of employment law counsel.
York, Pennsylvania 17403