In the post on Sunday 8/16/20, we saw that age, pregnancy discrimination concerns were raised ahead of return to worksites. It seems like many have been see-sawing between the workplace and working at home. There are questions that arise when employees return to the workplace, especially older and pregnant workers who are considered high(er) risk for COVID-19. So, can an employer take those characteristics into consideration in formulating a return-to-work plan? Maybe. A few things not prohibited by the ADEA that can be offered to older employees are listed in the post. Also, how older employees can be treated differently form younger employees is noted in the post. But what need not legally be done for older employees is also important; once again, see the post. Ok, so what about pregnant employees? They must be offered the same opportunities as other employees, but need not do other things, all as in the post. And if the pregnancy results in a disability as defined by the ADA, then those provisions come into play too.
TAKEAWAY: Accommodating certain classes of workers is often fraught with a give and take, and the COVID overlay only makes it more complex. Consult an employment lawyer.
The post on Monday 8/17/20 told us that a hospital is to pay a former employee $98,000 in a discrimination settlement. Yes, it should have known better. Ashley is deaf. She is also a histology technician. When she was hired in February 2018, the hospital provided an American Sign Language interpreter for orientation. But not afterward. Ashley often asked for assistance with learning her job (as noted in the post); how her manager responded is also in the post (and is a big ugh). Ashley complained; she was then assigned to a different position and fired for poor performance after only 2 months. The EEOC eventually filed suit on Ashley’s behalf, alleging discrimination and retaliation. The hospital settled for monetary relief and more as noted in the post.
TAKEAWAY: Employers have a legal obligation to try to accommodate eligible employees with a disability; it is difficult to take away an accommodation once it is provided.
The post on Tuesday 8/18/20 confirmed that after-acquired evidence was properly used to defeat an ADA claim. This is a case from a federal court that has no precedence in PA, but it is still a good case to note for employees and employers. So, what happened? Sunny filed suit, alleging her termination was due to her disability. After suit was filed, the employer learned that she did not have the decree required for all in her position, despite her representation to the contrary on her job application. The trial court then granted summary judgment in favor of the employer. The basis is in the post (and makes sense). She appealed. The appellate court affirmed, issuing its own analysis (which is also in the post).
TAKEAWAY: Usually the facts are fixed by the time a suit is filed, but when something relevant and undisputed comes to light, it may determine the outcome of the case. Contact an employment lawyer if that happens (and one is not already involved in the case).
The post on Wednesday 8/19/20 asked: Can a condo or homeowners’ association board mandate face masks in common areas during COVID-19? You should already know that association boards have broad discretion to act in the best interest of members. That is especially important, but remains true, when dealing with a health or public safety issue. How Boards should go about a mask mandate – or similar member protection matter – is described briefly in the post. Boards should also consult the Governor’s directives and recommendations as well as those of the Department of Health and CDC.
TAKEAWAY: Planned communities can impose restrictions on residents, but they must have a legal basis; consult a community association lawyer for assistance on rights and obligations of the board and residents.
The post on Thursday 8/20/20 gave us some eye-opening facts that will (or should) convince you to wear a face mask. The debate (to mask or not) still rages around the country, but the post provides facts as to why you should wear a mask. First, masks of all types are effective. Not just the special N95 masks, but ALL KINDS. Next, studies consistently show that COVID statistics are lower where masks are required. See the post for details. Third, masks prevent transmission from people who don’t know they are sick (asymptomatic). Why take the chance? Also, if you are complaining about restrictions that are in place now due to COVID, then wear a mask to prevent even more restrictions being put (back) into place. See the post for how this might play out. There are 7 other reasons listed in the post as to why you should wear a mask.
TAKEAWAY: There is no down side to wearing a mask. If it does not help, then fine; but if it does, great. People who cannot wear one for medical reasons are exempt, but otherwise just do it.
The post on Friday 8/21/20 showed us that by a two-vote margin, the Pennsylvania House rejected protections for gender identity and sexual orientation (but of course the Supreme Court shortly after ruled the other way). This happened in late May but is still important to let voters know how their legislators think (and act). An amendment to a pending bill was proposed by a Philadelphia legislator who happens to be the first openly gay person of color to serve in the state House. The import of the proposed amendment is in the post. The amendment was timed to coincide with businesses reopening, to ensure that if all employees were not rehired, LGBTQ and transgender employees would not be disadvantaged. How it was explained is in the post. One argument in opposition was … see the post. In case you’re keeping tabs, the vote failed 100 – 102, with 7 Republicans having joined all Democrats in voting in favor.
TAKEAWAY: Gender identify and sexual orientation are now protected under Title VII based on the Supreme Court’s Bostock decision, so anything to the contrary in Pennsylvania now is invalid.
Finally, in the post yesterday 8/22/20, we learned that FedEx Ground will pay $3.3 Million to settle an EEOC disability discrimination lawsuit. In the suit filed by the EEOC, it alleged that FedEx denied deaf and hard-of-hearing package handlers reasonable accommodations and discriminated against deaf and hard-of-hearing applicants for that position. What important tasks are covered by that position? See the post. While the case was filed in the Western District of Pennsylvania, it was only after a nationwide investigation and complaints form around the country. Who is affected and what FedEx must do (in addition to forking over the settlement money) is in the post.
TAKEAWAY: An employer’s obligations under the ADA apply to both applicants and employees – a failure to attempt to accommodate may well and the employer in hot and expensive water. Have an employment lawyer on call.