Broad effect from SCOTUS decision on religious discrimination, medical marijuana and job applicants, condo/HOA restrictions on sex offenders, novel theories of discrimination, and more in Our Social Media Posts This Week, Nov. 1-7, 2020.

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.broader effect of

broader effect of scotus decision on religious discrimination

In the post on Sunday 11/1/20, we learned that a SCOTUS decision shields religious schools from discrimination lawsuits (and has even broader implications …) The decision in Our Lady of Guadalupe School v. Morrissey-Berru came down 7/8/2020 and immediately began reverberating. The holding was that courts cannot intervene in employment disputes involving teachers at religious schools if those teachers have been entrusted to deliver religious instruction. The reach may be much farther. IT all started with 2 cases filed by Catholic schoolteachers in CA. In the name case, the plaintiff alleged age discrimination because a few days before she turned 65, she was told her contract would not be renewed. In the other case (St. James School v. Biel), termination occurred after the teacher asked for time off for surgery and chemo. Justice Alito write the majority decision; what is says is detailed in the post. Justices Sotomayor and Ginsburg dissented; the basis is noted in the post. What is perhaps more important is the broader effect this decision may have going forward. How Because despite evidence of age and disability discrimination, the teachers lost. That means similar things could happen to LGBTQ persons – see how in the post.

TAKEAWAY: Hard-fought protections for equal rights for all may well be eroded by this SCOTUS decision, but until we see if it plays out that way, treat all employees the same, regardless of their protected characteristics.

medical marijuana and job applicants

The post on Monday 11/2/20 was about a man claiming discrimination over medical marijuana and suing Allegheny County (Pittsburgh). The plaintiff, Mr. Reed, was born flat-footed and had more medical issues as noted in the post. He got a medical marijuana card in early September 2018 to help manage the pain. Then he filed an online application for a corrections officer position. Reed passed a written exam, physical fitness test and psych exam. Then came the drug screen. How that progressed is detailed in the post. Reed was ultimately not hired and filed a charge with the EEOC. After receiving his Right to Sue notice from the EEOC, he did. Sue, that is.

TAKEAWAY: Medical marijuana use is not an easy issue to deal with in the workplace – consult an employment lawyer to work with you and your facts.

condo/hoa restrictions on sex offenders

The post on Tuesday 11/3/20 (election day) told us that a judge denied homeowner association request for an injunction. So, what was this about? The Association was requesting that the court prohibit a convicted sex offender from residing in the community. The basis for the request is in the post. The judge analyzed the request, salient facts (see the post), and the association’s burden of proof (also in the post) and decided that the request could not be granted.

TAKEAWAY: Make sure your Governing Documents say what you mean and that every provision is enforceable.

health plan uncertainty post-bostock

The post on Wednesday 11/4/20 noted that a post-Bostock ruling does little to resolve health plan uncertainty. And yes, this might affect you. OK, you know the Supreme Court’s decision in Bostock said that Title VII’s protections against sex discrimination include that on account of gender identity and sexual orientation. As a result, a federal court stayed parts of the ACA (Affordable Care Act aka Obamacare). The Department of Health and Human Services (HHS) had published regulations that would have relaxed the nondiscrimination rules that apply to federally-supported some health plans. The regs centered on the definition of “discrimination on the basis of sex” – what the regs did is in the post. The court decision stayed those regs (albeit perhaps on shaky ground as noted in the post).

TAKEAWAY: Bostock may not be the be all and end all we thought – courts will have various scenarios before them in the coming years and one may eventually end up back in front of SCOTUS for clarification.

reasonable accommodation for deaf job applicant

In the post on Thursday 11/5/20 we saw that Conduent is to pay $77,500 to settle an EEOC disability discrimination lawsuit. The employer, Conduent, is a technology-based business services company with over 68000 employees around the world. The EEOC alleged that it discriminated against a deaf applicant who had applied for a corporate development associate position through a recruiting firm. The person needed an accommodation; what that was is in the post. As soon as that became known, Conduent removed the applicant from consideration for the position. The EEOC sued when conciliation failed. Now Conduent has agreed to a settlement that includes the noted monetary damages and the other things listed in the post.

TAKEAWAY:  Remember that the ADA’s reasonable accommodation process applies not only to employees, but also to applicants; know each party’s rights and obligations. Get legal assistance.

novel theory of racial discrimination

The post on Friday 11/6/20 showed us that the parent company of Olive Garden (Darden) allegedly violates Title VII with its tipping policies. Huh? Tipped employees are paid less than the federal minimum wage for hours worked; some are arguing that keeps workers in poverty, encourages sexual harassment and results in racial discrimination. An EEOC charge has now been filed against Darden on that basis (see the post for the exact wording). This is an alleged violation of Title VII. Darden denies the violation. Interested in where the plaintiff group got its theory? See the post (and be surprised). And that’s not all. Two servers for the Capital Grille chain (also owned by Darden) filed an EEOC charge the same day; the basis for their complaint is in the post. Darden’s initial responses to both charges are also in the post.

TAKEAWAY:  Treat all employees the same and follow all applicable laws. Period.

request for prohibition against age discrimination

Finally, in the post yesterday 11/7/20 we saw that the Writers Guild demands that age discrimination be  considered in new Best Picture rules. The Academy of Motion Picture Arts and Sciences, the entity that awards Oscars) issued new rules on September 8th. The purpose behind the new rules is in the post. The rules for the 2022 and 2023 awards now require that films submitted for best picture include a confidential Academy Inclusion Standards form; that will get more stringent for the 2024 awards as noted in the post. The Guild wrote a letter and urged the Academy to add a prohibition against age discrimination; the background of why that is important is in the post (and not without a nexus to reality given the $70 million class action suit settlement in 2010 in a case filed by writers against networks and talent agencies alleging age discrimination).

TAKEAWAY: Don’t make employment decision on the basis of age (or any other protected characteristic) – you may find yourself in costly legal hot water.

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