“Adverse employment action” for discrimination and retaliation purposes, employer decisions on religious requests for exemption from vaccine mandates, vets in battles with HOAs, holidays, and more in Our Social Media Posts This Week, Dec. 19-25, 2021.

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.

what counts as an adverse employment action in discrimination and retaliation cases?

In the post on Sunday 12/19/2021 we asked: What counts as an “adverse employment action” in discrimination and retaliation cases? Well it’s easy to answer if the action is termination, demotion or suspension. But what if it is something else, even “death by a thousand cuts?” The elements for employment discrimination are that the person is a member of a protected class, suffered an adverse employment action, and the 2 other criteria noted in the post. If the person can show all 4 elements, then the burden shifts to the employer to put forth a non-discriminatory reason for the adverse action. If they do, then the burden shifts back to the employee to prove (by a preponderance, which in law school is explained as 50% and a feather) that the employer’s reason is pretext. Similarly, there are elements an employee must show in a whistleblower retaliation case. They are that they engaged in protected activity, the employer knew they engaged in protected activity, they suffered an adverse employment action, and the last item noted in the post. If the employee meets all criteria by a preponderance, then the burden shifts to the employer to prove (by the standard set forth in the post) that it would have taken the same adverse action even if the employee had not engaged in the protected activity. So with the criteria in mind, let’s talk about what qualifies as an adverse employment action. It definitely includes the things identified by the EEOC (and listed in the post). It may also include other things but there is a split among the federal courts (as discussed in the post) that may some day be resolved by the US Supreme Court. When looking at a retaliation case, whether whistleblower or under Title VII, “adverse action” is defined more broadly than in the discrimination context. Examples include the language of a Supreme Court case from 2006 that is quoted in the post,  the holding in another federal case and statutory language (all of which are in the post).

TAKEAWAY: Employers must know what qualifies as an adverse employment action in order to (1) hopefully avoid it and (2) be able to defend any suit brought alleging that such action occurred and caused damages.

employer decisions on religious requests for exemption from vaccine mandate

The post on Monday 12/20/2021 noted that employers face tough call on vaccine exemptions for religious reasons. As more and more employers are imposing vaccination mandates, it is important that both they and employees know what is required in order to obtain an exemption from that mandate for religious reasons. First, the request must be based on sincerely-held religious beliefs. The employer can inquire into this a bit, but must be careful not to stray too far afield on this criterion. Once that is established, the employer and employee must engage in the interactive accommodation process to see if a reasonable accommodation exists (including the types of accommodations noted in the post). However, if the exemption would cause the employer undue hardship, which is easy to show in this context, the employer need not grant the request. Note that as of the writing of this blog, the Administration’s order (and OSHA emergency temporary standard) requiring employers with 100 or more employees to mandate vaccinations or enforce weekly testing was resulting in conflicting rulings by federal appellate courts. One way the employer can show undue hardship is noted about 2/3 of the way through the post – and may apply to many employers. More details on undue hardship are in our post from Friday 12/17/2021.

TAKEAWAY: Make sure to have in place steps to go through the same process for each employee who requests religious accommodation from vaccination; clear the process with an employment lawyer to ensure compliance.

veteran training new service dog amid legal battle with hoa

The post on Tuesday 12/21/2021 was about a veteran training a new service dog amid legal battle with HOA. Mothers, puppies and apple pie aside, people love their dogs, right? But what happens when a planned community (condo or HOA) has restrictions on pets? It depends if the animal (and it is not always a dog) is a service animal, an emotional support animal, or a pet. The first 2 categories do not need to meet restrictions on pets. Service animals are almost always dogs but can also be miniature horses. Here retired Army Sergeant Mark Heimkes is dealing with an issue in his HOA over his service dog (which helps him control his PTSD and suicidal thoughts).  He had Logan, a service dog, before but he passed away and Heimkes got Rex, a new service dog he is training. While he had Logan,  Heimkes was able to move around the community freely since moving there in 2018. But in 2020, something changed. See the post for what happened between him and the HOA – and is ongoing. Pay attention to what Heimkes did as a roadmap.  

TAKEAWAY: Planned community associations must know the law, including that dealing with service dogs, and apply it correctly to residents. Consult a community association lawyer to back up your position.

lady basketball coach sues um for sex discrimination

The post on Wednesday 12/22/2021 told us that the ex-Lady Griz basketball coach is suing UM for sex discrimination. Shannon Schweyen’s contract was not renewed in April 2020. She filed suit in federal court this past November claiming violation of Title VII. She asserts that she was told the reason for her firing (or non-renewed) was that 2 female basketball players entered the NCAA transfer portal. Did that same thing happen to male coaches? See the post. The Athletic Director had more to say on why Schweyen was fired; see the post. Interestingly, Schweyen told  TV media on April 1, 2020, that she’d met with the AD and he had guaranteed a contract extension (which resulted in she and her staff taking certain actions as noted in the post). The suit compares Schweyen’s salary with that of the men’s head basketball coach and adds other comparisons too – see the post. And what relief does Schweyen want? Yep, see the post.

TAKEAWAY: Before taking an adverse action against an employee, make sure you have firm legal footing for the action; otherwise you may find yourself facing life as a defendant in a lawsuit.

doj settles immigration-related discrimination claims

In the post on Thursday 12/23/2021 we saw that DOJ settled with Igloo to resolve immigration-related discrimination claims. Yes, the same Igloo company that makes coolers, jugs and hydration products. DOJ claimed that Igloo did not consider workers in the US (including US citizens, asylees, refugees and recent permanent law-ful residents) for some jobs because they were set aside for workers on temporary work visas. Why did Igloo allegedly do that? How DOJ answered the question is in the post. And that led to an alleged violation of the Immigration and Nationality Act (INA) (for which the relevant language is in the post). There was also another problem with what DOJ said Igloo did – it too is in the post. Igloo settled and agreed to pay $21K in civil penalties and more (including monetary relief) as noted in the post.

TAKEAWAY: Know ALL laws that may apply to your business and remember that discrimination on the basis of nationality may come under more than just Title VII or state law.

veteran requests help after long wait for hoa to approve disability accommodation

The post on Friday 12/24/2021 was the story of a veteran requesting help after months of waiting for HOA to approve disability accommodation. Similarly to our post on 12/22/2021, this too happened in Texas. But it could happen any-where, even PA, so pay attention. Former Marine Arthur Miles went to Vietnam in June 1967; he was wounded by shrapnel, spent 45 days in the hospital, and was re-deployed. And injured again. He still carries shrapnel from that time. He needs a scooter or walker to help him get around. His driveway was too narrow so he ended up in the grass (which did not make things easy for him). So he looked to widen his driveway – and even got a grant from the VA. He got approval from the city. But then he sought approval form the HOA. STOP! What he did, and how long he went without a response, is in the post. So what did he do? Contact a tv reporter! And then what happened? See the post.

TAKEAWAY: Know the process for various types of requests in your planned community – and follow it to a T.

holiday wishes … and more

Finally, in the posts yesterday 12/25/2021, here, here and here, we sent Merry Christmas wishes. And wishes for a less-pandemicky 2022.

TAKEAWAY: Take time out for whatever winter holiday (or cause) you support and look forward to the future.

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