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.
proceeding with suit
In the post on Sunday 8/1/21 we read that a Court enforced ADA’s pre-suit exhaustion rules (and noted that this case is precedential in PA). The issue is the case, Simko v. US Steel Corp., was whether an employee could pursue a claim under the ADA not included in the original EEOC administrative charge and the subse-quent amendment to add it was untimely. The employee was hearing-impaired. He applied for and got a different position with the same employer. During training for the new position, the employee requested a 2-way radio as an accommodation; the employer did not provide it. Even though the employee completed the training, the trainer would not certify the employee’s ability to perform the required duties. As a result, the employee was transferred back to his prior position. About 9 months later. He filed a charge with the EEOC alleging discrimination under the ADA (denial of the transfer due to his disability and request for reasonable accommodation. The employer denied that there was any discrimination. Seven months later, termination occurred for unrelated performance reasons. The employer allowed the employee to return under a last chance agreement, but termination occurred again a few months later for a safety violation. About three months after that, the employee sent a letter to the EEOC, claiming that the discharge was retaliation for filing the underlying charge of discrimination. A year later, the employee filed an amended charge, alleging both disability discrimination (which was in the original charge) and retaliation (which was first brought up in his letter). Moving at its usual speed, about 4-1/2 years after final termination, the EEOC issued a reasonable cause determination on the retaliation charge (the EEOC investigator’s basis for which is in the post). Conciliation failed and the EEOC issued a right-to-sue letter. The employee filed suit in federal court alleging one count of retaliation under the ADA. What was NOT in the complaint is noted in the post. The District Court dismissed the case for failure to exhaust administrative remedies. Its analysis/ reasoning is in the post. The employee appealed to the Third Circuit. It affirmed. Again, its reasoning is in the post – and instructive to employers and employees alike.
TAKEAWAY: As relevant, employers should make sure that all claims set forth in a suit were a timely part of an underlying EEOC charge. Engage an employment lawyer relative to this legal threshold.
meet or suit will be dismissed
The post on Monday 8/2/21 was about a court rejected a suit from an employee whose brother contracted COVID-19. This is an association case. The employee and her brother both worked at the same facility for Manning Mills. After her brother tested positive, she was sent home by her supervisor – the basis for which is in the post – and told to quarantine for 14 days. A few days later, the HR director accused the employee of dishonesty based on a prior conversation they had; the details of that conversation are in the post. As a result, the employee was terminated. She filed suit, alleging a violation of the ADA. The district (trial) court ruled against her, finding that the requirements for an association claim (the third prong under the ADA and one that is being used more frequently now) were not met. The three elements the court found missing are noted in the last section of the post. The court granted the employer’s motion to dismiss.
TAKEAWAY: The EEOC has said that whether COVID-19 is a disability is unclear; this impacts whether a claim is valid when brought based on the relationship or associ-ation with a person who has a disability (in this case COVID-19). This is another legal threshold question that should be discussed with an employment lawyer by either the employee wanting to bring suit or the employer who is defending the suit.
The post on Tuesday 8/3/21 was about stories of malicious compliance – with #9 being in the condo/HOA context (but all worthy of reading for a laugh). So, what does malicious compliance mean for our pur-poses here? When a superior tells someone to do something that is stupid, and that person does it, to a T, just to show how stupid it is. The post contains just 10 of the thousands on Reddit, but we are looking at #9, titled “we just follow the rules.” So what happened? The homeowners’ association decided that all BLM, thin blue line, or similar flags were too much. Only US flags were allowed from then on out. The house at issue had flown a small pride flag for years; finally, someone reported it. After the complaint and HOA contact, the small flag was removed. But the owners looked at the association’s other rules. What they found led to their next action. Both the rule and action are noted in the post. And the Association could do nothing about it.
TAKEAWAY: Rules are made to be followed, and when a member of a planned community (community association, whether condo or single-family homeowner), follows the rules, even if it leads to an unintended result, the Association is then hard-pressed to call foul.
legally ok?
The post on Wednesday 8/4/21 asked: Are sex-segregated bathrooms at work OK? The EEOC’s answer, in recent Guidance it issued, may be surprising. The Guidance was released on the anniversary of SCOTUS’s decision in Bostock v. Clayton County. The Guidance uses Bostock as a springboard for a broad discussion of how Title VII applies in cases involving alleged bias based on gender identity or sexual orientation. While the Guidance is not binding, it gives a clue as to the EEOC’s position should charges be filed or if it files suit. Why did this come about? Because Bostock left open the question of whether Title VII requires employers to permit employees to use a bathroom consistent with their gender identity. The EEOC said … what is noted in the post. That position also applies to locker rooms and showers. Another area specifically not addressed in Bostock was dress codes. EEOC Guidance to the rescue again. What is says on this subject is also in the post. And there is more: the Guidance also touches on pronouns or names inconsistent with an employee’s gender identity and what an employer may or must do. Again, see the post. There is also a link to the Guidance at the end of the post.
TAKEAWAY: to be able to train your employees as to what they can or cannot, or may or must, do, you need to know the law – contact an employment lawyer for assistance.
In the post on Thursday 8/5/21, we saw that the EEOC sued a company for firing an employee who refused to be finger-printed. The suit was just filed in mid-June 2021 against an estate and probate debt recovery company. The employer had requested all employees be fingerprinted as a result of a background check requirement of one of its clients. The employee, a Christian, explained why he could not comply; his explanation is in the post. He did, however, provide 2 alternatives, but the employer chose to discharge him instead. Stay tuned.
TAKEAWAY: Remember that employers have a duty to reasonably accommodate employees’ sincerely held religious beliefs. Just because the accommodation may not be what the employer wants or suggests in the first place does not mean that the employer should not agree to that accommodation. Consult an employment lawyer before getting in hot water.
The post on Friday 8/6/21 told us that strange things happen in condo and HOA associations – like a chiropractor ditching patient records on a front lawn. Marilyn saw the records in her neighbor’s yard. She knew they belonged to a chiropractor who had closed his business. Some of the personal and medical information in the files is noted in the post. Marilyn even started to go through the files to alert the people who were at risk. Some came and got their files. The steps the local media took to try to find out why the files were there are in the post. Among other things, Marilyn got the HOA involved. What happened after that, including a “for sale” sign on the house, is noted in the post.
TAKEAWAY: Condo and homeowner Associations must enforce the Governing Documents, but that does not mean that every problem is in their wheelhouse or must be (re)solved by the Association. Contact a community association lawyer.
of public accommodation
under the ADA?
Finally, in the post yesterday 8/7/21, we learned about Gil v. Winn-Dixie: Circuit Court holds websites are not places of public accommodation under ADA Title III. Let’s start with the statute: it provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of any place of public accommodation …” What was at issue in this case was whether websites are included. Gil, who is legally blind, brought suit because he was allegedly unable to use the store’s website. He said that while he patronized the physical stores, he wanted to refill prescriptions and get coupons through the website. What happened when he tried is noted in the post. He sued under the ADA; Winn-Dixie said that the website was not a “place of public accommodation.” On what the store based that argument is in the post. The trial court ruled in favor of the plaintiff, but without reaching the ultimate issue (see how it did that in the post). Gil appealed and the appellate court reversed on the basis of the statutory language (see the post for the analysis). And the appellate court went even further, finding that the website also was not an “intangible barrier” to Gil’s ability to access and use the store’s physical locations. How the court got there is also in the post (and makes perfect sense to this author) – but note that the decision was fact-dependent and may change with different facts. There is now an even deeper split among the federal circuit (appellate) courts on this issue, so more than ever it is looking like SCOTUS will need to decide the issue.
TAKEAWAY: Employers in a jurisdiction with no controlling caselaw (such as PA) are advised to ensure their websites are ADA-compliant or risk being a defendant in a lawsuit.
York, Pennsylvania 17403