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 10/6/19 we learned why retaliation claims are easier to prove in court than discrimination claims: the FedEx case. Yes, there is a difference between the underlying discrimination case and one based on retaliation. A federal court recently analyzed that difference. Shirley worked for FedEx for about 8 years before she was fired. Prior to discharge, she had taken the actions noted in the post. Post-discharge, she sued for retaliation based on those actions. She won at trial – the verdict is noted in the post. Of course, FedEx appealed. The basis for its appeal is in the post. The court explained why FedEx was in error, noting the difference between discrimination and retaliations claims – see the post.
TAKEAWAY: It is easier to prove retaliation than the underlying discrimination – keep that in mind when taking adverse action against employees.
The post on Monday 10/7/19 asked what can the EEOC get (for the employee) upon a finding of discrimination? The goal of the law is to make the person whole, as if the discrimination had not occurred. The remedy might include both monetary and non-monetary relief. Some types of releif inlude placement into a position (the one for which the person was not selected or a substantially similar one), including retroactive seniority, as noted in the post, what happens to the person who was selected for the position? See the post. Other remedies include monetary compensation and compensatory damages as outlined in the post. The relief might also inlude expungement of adverse materials from the person’s file/record and more as noted in the post.
TAKEAWAY: Before you discriminate against someone, now what the penalty may be when you are found out – talk to an employment lawyer to know your rights.
The post on Tuesday 10/8/19 asked: Can a delinquent owner run for an Association board postiion? Facts similar to those in the post occur each year in local Associations. So, the question becomes whether a delinquent owner is eligible to run for a Board slot. In the post, the answer was no based on a state statute. In Pennsylvania, there is no state statute, so the answer will depend on the Association’s Governing Doucments.
TAKEAWAY: Community associations are governed not only by applicable state law, but also their own documents; both must be reviewed for answers to questions. Consult a community association lawyer to be sure.
The post on Wednesday 10/9/19 noted that discrimination based on potential future disability is not illegal under the ADA. Kim was a massage therapist fired by her employer over concerns that she might contract Ebola on a visit to Ghana. The federal court analyzed the issues surrounding the discharge and whether it was illegal. The threshold question is in the post. Also in the post is how the court applied the facts to the law and ruled in favor of the employer. The court even pointed to the EEOC’s own guidance to support its ruling.
TAKEAWAY: To assert a claim under the ADA, something must be actual (or perceived) at the time of the alleged discrmiantion, not just hypothetical.
In the post on Thursday 10/10/19, we learned that reasonable accommodation can require additional leave. Yep, more time when the person is not working. The first place to look for leave is the FMLA (if it applies – see the post for eligibility criteria). But what if FMLA leave is insufficient? The next place to look is the ADA (again, if there is eligibility). An example of this tie-in is in the post. The leave need not be indefinite; how long is too long is based on the factors noted in the post.
TAKEAWAY: Know what leave is required or permitted under all applicable statutes – consult an employment lawyer to stay legal.
The post on Friday 10/11/19 told us that Walmart likely discriminated against female workers. Who and how? 178 women, by paying them less, denying them promotions, or both, because of gender. Or so the EELC said. Walmart has agreed to try to resolve the issues as noted in the post.
TAKEAWAY: No company is too big to be held liable if it violates the law.
Finally, the post yesterday 10/12/19 told us that the Marquez Brothers food company is to pay a $2M settlement after rejecting non-Hispanic job seekers. Yes, Title VII applies to applicants as well as employees. The company makes cheeses, yogurts, meats and other foods. It settled a suit filed by 2 African American applicants who worked for but were denied paperwork to be hired. One of the EEOC’s allegations regarding the strength of an applicant’s qualifications as compared to those ultimately hired is in the post. The settlement includes relief in addition to the $2M – see the post.
TAKEAWAY: You will be found out – don’t take adverse action against an applicant or employee based on a protected characteristic.
York, Pennsylvania 17403