Avoiding EEOC wrongful termination claims; new I-9 Form; $20K+ special assessment in condo/HOA; addressing unwanted advances from supervisor; and more in Our Social Media Posts This Week, Aug. 20-26, 2023

Below is a review of the posts (on Facebook, LinkedIn, and Twitter/X) from the past week. You can check out the full posts by clicking on the links.

eeoc wrongful termination claims and how employers can avoid them

The post on Sunday 8/20/2023 was about EEOC wrongful termination claims and how employers can avoid them. Just because Pennsylvania and most other states have (some form of) at-will employment (meaning that an employer can discharge an employee at any time for any or no reason, and without notice, so long as the reason isn’t illegal, and employees can quit at any time and for any or no reason), that doesn’t mean employers can terminate employees with impunity. Various state and federal laws protect employees from wrongful termina-tion, including firing an employee for a discriminatory reason or for being a whistle-blower. Potential bases of wrongful termination include breach of contract (in certain situations) and adverse action on the basis of a protected characteristic (which are listed in the post).

Once someone files a charge with the EEOC, it will investigate. As for the employer, it too should investigate the claim. Why? See the post.  Statistically, 60% of retaliation/ wrongful termination cases are won by employees, so employers must make sure their ducks are in a row. The best way to do that is to know what the law does and does not allow and how to respond to an EEOC complaint when (not if) you receive it. Let’s walk through this.

First, there are some exceptions to an employer’s ability to terminate an at-will employee. Exceptions include the existence of an employment contract, that the termination is based on illegal discrimination, and that the employee is protected on public policy grounds (see the post for more on this).

Next, it is good to know over which federal laws the EEOC has enforcement authority. They are Title VII of the Civil Rights Act (which coverage is detailed in the post), the Pregnancy Discrimination Act (an amendment to Titel VII), the Equal Pay Act, the ADA, GINA, and others noted and described in the post. Action taken by an employer in violation of any of these statutes might result in the filing of a claim of discrimina-tion or wrongful termination. And what if the EEOC wants to proceed on a wrongful termination claim despite the employer’s proffered reason for discharge? Then the best thing an employer can do is to settle. The EEOC’s goal in settling is to restore the employee to his/her/their situation/status prior to the (alleged) discrimination. What that usually means is noted in the post. But there is more that the EEOC will probably require of the settling employer – see the post. And in case you ask why an employer should settle instead of defending itself in court, it is because of the possibility of an award of compensatory and punitive damages (described in the post) in favor of the employee.

Ok, so you are in receipt of a wrongful termination claim filed with the EEOC. It hasn’t settled. Now what do you do? You definitely DO NOT just ignore it – it will not go away. The matter will only get worse if you do that. You want to explain the entire situation to the EEOC, including why the employee was discharged. Provide copies of relevant documents (redacted as appropriate). Examples of things to include are in the post. Also let the EEOC know if other employees have been discharged for the same reason in the past – and whether or not they share protected characteristics with the subject employee.

So what are some steps employers can take to hopefully avoid claims of discrimination and wrongful termination? Creating and uniformly enforcing anti-discrimination policies. Examples of things to include in the policies are listed in the post. Ensuring that retaliation is also prohibited. Common (but illegal) examples of retaliation are also listed in the post. Document, document and document. There can (almost) never be too much documentation. Examples of what to retain that might be of help in defending against a discrimination or wrongful termination charge/suit are in the post. Knowing an employer’s obligations under applicable law, especially leave and accom-modation requirements under the FMLA, ADA and USERRA.

TAKEAWAY: Do not take adverse action against an applicant or employee on the basis of a protected characteristic or in retaliation for something the employee did – and consider consulting an employing lawyer to make sure you are fulfilling your legal obligations.

the new i-9 form is here!

The post on Monday 8/21/2023 told us the new I-9 Form is here! You can still use the old form, but the new form must be used on and after November 1, 2023. The new form has a check box to indicate that an alternative verification procedure has been used by the employer. So far, the one approved alternative is that E-Verify employers in good standing may conduct a remote doc and verification via live video. And for those who use this alternative process, see the post for tips.

TAKEAWAY: Make sure to properly onboard new employees, including having all required state and federal forms filled out.

$19K-28K special assessment has some wanting to sell at one community association

The post on Tuesday 8/22/2023 noted a $19K-28K Special Assessment has some wanting to sell at one community association.  Some owners have only been there a few years, while others have lived there for 30 years. Apparently the owners had seen maintenance and upkeep decreasing (or not existing) the past 15-16 years. And now, of course, many associations have increased obligations under new laws (enacted in the wake of the Champlain Towers collapse) for inspections. Some items that might turn up as needed repair are noted in the post. And how long does an owner have to pay a special assessment that might be levied? It varies; perhaps months, perhaps years. And when some-thing like this happens, owners who were uninterested up until then are all of a sudden demanding to see association financial data – and asking questions. It is important to know owners’ rights under applicable law (and their Governing Documents) to review association documents/records.

TAKEAWAY: Make sure your HOA or condo association performs proper and necessary maintenance as and when needed; while assessments may (and should) increase, that is still better, and safer, for all concerned.

scotus declines to hear case regarding gender dysphoria’s status under the ada

The post on Wednesday 8/23/2023 revealed that SCOTUS declines to hear case regarding gender dysphoria’s status under the ADA. That left in place a decision by the Court of Appeals – the first on this issue – which extended ADA protection to transgender people experiencing gender dysphoria. Know that the court distinguished gender dysphoria from gender identity disorder – see the post for some of its explanation. The court also held that even if gender dysphoria and gender identity were not categorically distinct, the former would fall within the ADA’s safe harbor for gender identity disorders resulting from physical impairments. How the facts of the case played out under that ruling is explained in the post. The appellate court did NOT find that being transgender is itself a disability; rather, it held that gender dysphoria can be disabling and be protected under the ADA.  Unsurprisingly, Justices Samuel Alito and Clarence Thomas dissented from the denial of certiorari – their reasoning is in the post. So, what could this mean for you and your business? That your policies and practices must provide accommo-dation to employees experiencing gender dysphoria. There might also be state or local laws/ordinances that require this of employers.

        TAKEAWAY: Employers must know which laws apply to their business and how to comply with those laws – as the law is not static, it is best practices to consult with an employment lawyer periodically (or when a particular issue arises).

the law: legally and practically addressing unwanted advances from a supervisor

In the post on Thursday 8/24/2023 we read the law: legally and practically addressing unwanted advances from a supervisor. Many employees need their jobs and unwelcome advances for a supervisor make them want to quit but not be able to for financial reasons. So what should happen? Employees must know his/her/their rights under state and federal (Title VII) law as the start. If the supervisor’s conduct is such that a reasonable person would consider it to be severe and pervasive enough so as to change the conditions of employment, then that conduct may be illegal. But what if the conduct was not meant to harm the employee? See the post. Employees should immediately report the conduct to HR, preferably in writing. HR should then investigate, regardless of the person against whom the complaint has been lodged. Employers and employees should keep notes – updating each other on the status is helpful too. Attorneys might eventually get involved. And what about the practical view for the employee? See the post.

TAKEAWAY: Employees must be trained on how to respond to complaints – and must follow through to decrease the possibility of liability for any violations.

veteran evicted from home of 10 years claiming due to little-known condo/HOA law

The post on Friday 8/25/2023 was about a veteran evicted from home of 10 years claiming due to little-known condo/HOA law. Ok, let’s read and view (the post includes a VID) the facts. Keith Williams, Jr. said a sheriff told him he had to leave his house. The sheriff changed the locks and evicted Williams. Why? Williams had not paid his HOA fees, so the amount due got larger and larger, ending in legal action by the association. How far back this goes is noted in the post. Because the association had a lien and Williams did not pay it off, the association took advantage of its statutory rights. One must wonder if there was any communication between Williams and the association during this time period.

TAKEAWAY: all owners are responsible to pay assessments in a community association; those who fall behind should immediately communicate with the association to ensure that the association does not avail itself of procedures available to it in the Governing Documents or applicable law. Both owners in default and boards should consult a community association lawyer to ensure the process is legal.

couple’s discrimination and retaliation case against state supreme court is dismissed

Finally, in the post yesterday 8/26/2023, we learned a couple’s discrimination and retaliation case against state supreme court is dismissed. This case provides another roadmap for employers (and employees too). Judges and courts are tasked with enforcing and ruling on com-plaints of discrimination and retaliation, but occasionally they are the objects of such complaints. Here Michele Brown, an African American woman in her 60s, and her husband, Andrew Maikovich, sued a state judicial depart-ment based on actions taken by that state’s supreme court (which is a part of the department). The allegations stem from Brown not being hired for a staff attorney position at the court. At that time, Maikovich also worked for the court administrator’s office. When the court hired a younger Caucasian woman instead of Brown, Brown and Maikovich brought discrimination complaints. Maikovich alleged retaliation as a result of his supervisors requiring him to participate in an interview about his discrimination claim. Brown alleged discrimination on the basis of age and race. The trial court dismissed both claims (on the bases set forth in the post). On appeal the dismissals were upheld; the reasoning can be a roadmap for others.

On Maikovich’s retaliation claim, the appellate court decided that participation in an interna investigation interview is not an adverse action so there could be no retaliation claim. Maikovich’s argument as to why it should be considered an adverse action is in the post – along with his admission that he did not want an internal investigation. Turning to Brown’s claim, she argued that the decision to hire the younger Caucasian woman was discriminatory as she did not meet minimum job qualifications (for the basis set forth in the post) and that she (Brown) was a better candidate and the court provided inconsistent explanations to the EEOC. The appellate court went through Brown’s arguments one by one, knocking them down. Its general analysis is in the post. Interestingly, while the appellate court found that the state court did provide inconsis-tent information to the EEOC, what remained constant was its reason for the hiring decision.

So what can employers and employees learn from this? First, employers should investigate every claim of discrimination and retaliation. And the investigations should be focused as noted in the post. Advertisements for open positions should contain accurate information. And two more things listed and discussed in the post.

TAKEAWAY: Hiring can be fraught with danger for an employer that does not follow legal requirements; keeping an employment lawyer in the loop will ensure proper steps are taken at all phases.

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