In the post on Sunday 1/10/21 we learned that SCOTUS clarified the difference in proving age discrimination for federal and private employees – know this! The statute is the same: the ADEA, but different parts apply to different employment sectors. Before this case, Babb v. Wilkie, , the employee had to prove that age was the primary motivating factor for the adverse decision. How that differs from other types of discrimination burdens is in the post. The question before the Court was whether federal sector employees had the same burden of proof in age discrimination cases. And now we know: the burden for federal-sector employees is to show that age was A factor, not THE motivating factor, which is much broader than for private-sector (or state or local government) employees. How and why the Court arrived at its decision is discussed in the post. Is that all? Nope. The Court also talked about what happens if age is THE motivating factor, not just A factor, and how that affects available relief – see the post for what it is and how it applies in cases. Also, how if at all this affects, or is affected by, civil service employment is also discussed in the post.
TAKEAWAY: No matter the employer, public or private, adverse decisions should not be made on the basis of age. Legal relief may be available; consult an employment lawyer.
The post on Monday 1/11/21 was about Human capital: some of the biggest labor stories (and lessons!) of 2020. One of the biggest, but with an unknown effect outside of CA, is the new CA law classifying gig workers as independent contractors. Before, there was a court decision that went the other way, saying they were employees. More headlines were made involving Amazon. In one of the cases, Smalls, a former warehouse worker, was fired in March after organizing a walkout. How that rippled with other Amazon workers is in the post, a well as what Amazon intended to do relative to Smalls and its reason for his discharge. Smalls filed suit in November. The year also included unionizing for some tech companies – see the post – and perhaps unequal settlement of race discrimination complaints and suits against Pinterest (also in the post). Google was also in the headlines, as was The Wing (see the post). But there was also a bright spot: the co-founder of an international tech company stepping down to permit replacement with a Black person. Details are in the post.
TAKEAWAY: The laws are normally the same no matter how large or small the employer, so all need to be aware of the effects (and impact on the public reputation) of violations.
The post on Tuesday 1/12/21 was about the FHA, ADA and community associations: what condo and HOA Boards need to know. This post focused on regulations about assistance animals, handling harassment claims, and the Housing for Older Persons Act (HOPA). Claims about assistance animals comprise about 60% of FHA and ADA claims, so this is a huge category that includes both service animals and support animals. The former is a dog or miniature horse trained to perform a specific task or work for the disabled person. The latter could by any type of animal that provides emotional support or performs tasks for a disabled person but does not have training for that. So how does discrimination come in? By treating the animal just like any other animal: limitation on number, breed, size, and other things. What an association can ask and do is generally noted in the post, but legal advice is a must. Harassment in community associations is also a hot topic these days, including whether the association must get involved. One trigger is if a community member (not necessarily an owner) is being harassed on the basis of a protected characteristic. The post has an example. There could also be hostile environment harassment, which is also discussed, with an example given, in the post. And finally, HOPA. This statute underlies 55+ (or sometimes 62+) communities without being considered age discriminatory. The requirements to be met are discussed generally in the post and are important for Boards to know and ensure as part of the Governing Documents.
TAKEAWAY: Most planned community boards try to ensure fair treatment and equal enforcement as to all residents and members, but things happen. And when they do, it is time to contact a community association lawyer.
The post on Wednesday 1/13/21 was about a manager sending a worker home for refusing to remove her hijab. You can both read and listen to this post. Stephanie worked at Chicken Express. She wore a hijab to work. The manager told her to remove it (why is noted in the post). She refused and was sent home. But it didn’t stop there. Employees got into the act too – see the post. Yes, Stephanie filed a charge with the EEOC.
TAKEAWAY: Employers must try to accommodate all sincerely-held religious beliefs of employees unless it is an undue hardship as determined by the law – get good legal advice if involved in an accommodation matter.
In the post on Thursday 1/14/21 we saw that United Hospice was sued for race discrimination and hostile work environment by minority workers. Four current and former employees filed suit for race discrimination, HWE and retaliation. Most of the claims are based on what they allege happened during the pandemic. Three of the plaintiffs are Hispanic and the other is Black. They allege a difference in how white employees were treated during the pandemic as opposed to how minority employees were treated – see the post. Details about the alleged disparity are in the post, including what happened when one presented a doctor’s note and requested accommodation. The suit goes beyond discriminatory treatment during the pandemic and includes unequal compensation and other claims, all detailed in the post.
TAKEAWAY: Employers should not discriminate or otherwise take adverse action against anyone based on a protected characteristic. But before making a claim or bringing suit, make sure apples are being compared to apples (as may not have been the case here).
The post on Friday 1/15/21 was timely and asked: Can employers require workers to take the COVID-19 vaccine? According to the EEOC in its latest Guidance, yes. But there are exceptions (of course). The purpose of mandatory vaccination before returning to the workplace is to ensure there is no threat to the health or safety of others in the workplace. But that purpose cannot trample people’s religious beliefs or disabilities. If someone’s religious belief prohibits vaccination, then the employer must try to accommodate that belief. An example is in the post. The EEOC said that a COVID vaccine is not a medical exam, so a mandatory vaccine is permissible. However, if a disability prevents the person from getting vaccinated, the employer must attempt to accommodate. Note that undue hardship also applies in case of accommodation requests, but that is bound to be fact specific.
TAKEAWAY: Know the interactive accommodation process and rights and responsibilities of both employer and employee if mandatory vaccination is being discussed or effectuated. Get competent advice from an employment lawyer.
Finally, in the post yesterday 1/16/21, we learned about settlement of an ADA violation between DOJ and the Tawsty Flower B&B (in Lewisburg PA). What happened? The B&B did not allow a disabled person with a service animal to book a room. Yes, that was a violation of the ADA. The person who made the denial had not been properly trained. The B&B cooperated, which is probably why the relief was much more minimal than in many other situations – see the post.
TAKEAWAY: Proper training for employees is imperative in order that the employer stay out of legal hot water.