Changed work assignments per client preference is (probably) illegal; PWFA; effect of limited common elements on condo/HOA value; accent bias; and more in Our Social Media Posts this week: Sept. 3-9, 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 sues home care provider for race and national origin discrimination over changing work assigments based on client preference

The post on Sunday 9/3/2023 told us the EEOC sues home care provider for race and national origin discrimination over changing work assignments based on client preference. The federal suit the company “routinely would accede to racial preferences of patients in making home health aide assignments, including by removing Black and Hispanic home health aides based on clients’ race and national origin-based requests. Those aides would be transferred to a new assignment or, if no other assignment were available, lose their employment completely.” The relief requested by the EEOC is noted in the post.

This issue – accommodating patient or client preferences in making assignments  – is not new for healthcare providers. In a 2016 case a federal court ruled that a respiratory therapist could proceed with her civil rights claim because questions remained unanswered as to whether the employer would honor a patient’s request (that hits protected characteristics). That case differed from this one because of the statute under which the claim was filed – see the post as to the difference that made. And one to keep an eye on: the Supreme Court recently accepted for review a case that challenges the Title VII adverse employment action requirement. Muldrow v. City of St. Louis, Mo.. The effect removing the adverse employment action requirement could have on employers is noted in the post.

TAKEAWAY: train all patient (or client)-facing staff to maintain a work environment free from unlawful discrimination.

eeoc’s proposed rule to implement the pwfa (pregnant worker fairness act)

The post on Monday 9/4/2023 was about the EEOC’s proposed Rule to implement the Pregnant Worker Fairness Act (PWFA). On Labor Day, this post was some-thing that helps equalize the workplace. The Notice of Proposed Rulemaking (NPRM) was published for public comment in the Federal Register on August 11th. The PWFA provides pregnant and postpartum workers access to support on the job to keep working which, in turn, helps employers retain critical talent. What the PWFA requires of employers is in the post – as well as how it interrelates with Title VII and the ADA.

The NPRM explains how the EEOC proposes to interpret the PWFA and certain terms in the statute, such as “temporary”, “essential functions”, and “communicated to the employer.” It also provides numerous examples of those things noted in the post.

The PWFA was signed into law by President Biden on Dec. 29, 2022. The EEOC enforces the PWFA and began accepting charges on June 27, 2023, the day the law became effective.

TAKEAWAY: Employers must now what they can and must do relative to pregnant (and postpartum) workers; consultation with an employment lawyer is a start.

how limited common elements affect property value and maintenance of homes in condo and Homeowners’ associations

The post on Tuesday 9/5/2023 was about how limited common elements affect property value and maintenance of homes in condo and homeowners (HOA) associations. Remember that limited common elements (LCEs) are portions of a property that are owned by all unit owners in a condominium or HOA but are reserved for the use of at least one but fewer than all units. Examples of LCEs are listed in the post.

The value of a property is often influenced by the presence and condition of its LCEs. For instance, a condominium unit with a private balcony or an exclusive parking space is likely to have a higher market value compared to a similar unit without these amenities. The value added by LCEs can vary based on several factors, including those listed in the post. While LCEs can enhance property value, they also come with additional responsibilities and costs, particularly in terms of maintenance. Who bears those obligations is discussed in the post. The maintenance obligation can include regular cleaning, repairing any damages, and even replacing the LCE if necessary. And it is this same maintenance that can lead to disputes; but one example is in the post.

Most associations have rules and regulations regarding the maintenance of LCEs. Additionally, some associations may offer maintenance services for LCEs, either included in the monthly association fees or for an additional charge. What is helpful is when the association has a maintenance matrix laying out the various common (and limited common) elements and who is responsible for maintenance.

TAKEAWAY: Owners and Board members must know which of them is responsible for what maintenance on and for LCEs. Community association lawyers can be of assistance in preparing or reviewing such matrices.

mother accused of human trafficking by southwest airlines fileS Discrimination lawsuit

The post on Wednesday 9/6/2023 noted a mother accused of human trafficking by Southwest Airlines files discrimination lawsuit. A white mother sued Southwest for “intentionally” discriminating against her and her biracial daughter. Mary MacCarthy had boarded a Southwest flight to Denver, Colorado, from San Jose, California, in October 2021 with her daughter who was then 10 years old. When they arrived in Denver, they were confronted by armed police and a Southwest staff member for suspected child trafficking. The damages sought by MacCarthy in her suit are noted in the post.

MacCarthy’s attorney said that by using racial profiling to cause the Denver police to stop innocent travelers. Southwest attempted to address sex trafficking through use of a stereo-typical, easy formula. Southwest did not comment. But what it said about the incident in 2021 is noted in the post.

But there’s more. MaCarthy’s suit also alleges that her incident was not the first case where Southwest employees racially profiled families and reported them to law enforcement. An incident that occurred in January 2021 is described in the post.

          TAKEAWAY: racial profiling has no place in the workplace or public accommodation.

workers fired after complaining about company prayer sessions were awarded $50K

In the post on Thursday 9/7/2023 we read that workers fired after complaining about company prayer sessions were awarded $50K. Let’s look at Aurora Pro Services, a NC home-repair company. According to a federal lawsuit filed by Mackenzie Saunders, a former Aurora worker, employees would gather for a mandatory prayer meeting every day. the owner allegedly took attendance at the prayer meetings and reprimanded employees for not attending . Employees stood in a circle while leaders, including the owner, allegedly read Bible scriptures and prayed. What happened in that circle is described in the post. Saunders alleges that the meetings became “cult-like’,” She attended the meetings after she was hired in November 2020 but stopped in January 2021.

Another former Aurora employee, John McGaha, a former construction manager for Aurora who began working there June 2020 described the changes in prayer meetings from when he started that summer to a few months later – see the post. McGaha is an atheist. He initially attended the prayer meetings (which also dealt with a bit of business), but then became disillusioned. See the post for more on this. He asked to be excluded from portions of the meetings. The response by Aurora’s owner is in the post. Days later, Aurora allegedly cut his pay in half. McGaha asked to skip the meetings a second time; the response he got is also in the post. One of the responses from the owner was “If you do not participate, that is okay, you don’t have to work here … You are getting paid to be here.”

Aurora fired McGaha and Saunders in 2020 and 2021, respectively, after they objected to the prayer meetings. McGaha was fired only 6 days after his 2nd request. The reason given for Saunders’ termination is in the post. And now Aurora has agreed to pay them (the amounts are in the post) to settle the religious discrimination and retaliation lawsuit. In the prior answer that it filed in court, Aurora asserted that the prayer meetings were not mandatory; it also dealt with the other things noted in the post, including McGaha’s behavior on his last day of employment.

The settlement includes non-monetary relief on top of the money Aurora will pay to Saunders and McGaha – what it is is noted in the post.

TAKEAWAY: Employers cannot discriminate against employees on the basis of their sincerely held religious beliefs; to the contrary, employers must try to reasonably accommodate those beliefs.

financial red flags for people buying a home in a condominium (or homeowners’ association)

The post on Friday 9/8/2023 was about financial red flags for people buying a home in a condominium (or homeowners’ association. Owning a condo can be great – but there are things to consider before buying. In no particular order, one thing to look at is whether the condo is warrantable. What that means is described in the post. Why this makes a difference to a buyer is also in the post. If the FHA makes loans for the purchase of units in the condo is also something to look at. Why this is on the list – and what it tells a potential buyer – is in the post. And what about delinquent fees/assessments? In Pennsylvania a resale certificate should be issued and contain this information. The effect of delinquent assessments on the association is in the post. And there are more things to consider, including the status of reserve funds and planned special assessments. Both are discussed in the post (from one viewpoint)..

TAKEAWAY: Pending special assessments may not be a bad thing – they indicate either recent work that was completed or work that is to be done, either of which will increase property values.

how accent bias factors into workplace decisions

Finally, in the post yesterday 9/9/2023, we noted how accent bias factors into workplace decisions. Statistics show that nearly one in five workers worldwide (17%) believe they were not selected for business trips due to their accent. Many also think they are denied the opportunities travel affords, including those noted in the post.

The findings looked at studies on hiring decisions between two potential job candidates – they looked at 4,576 participants. The only difference between the candidates was the accent with which they spoke. How the study was conducted is in the post.

The study found two broad arguments to try and explain the difference based on accent. One is that non-standard accents might impede communication, and therefore, might make employees less effective in their job. The other is in the post. And there was an even stronger correlation between on-hiring and accents for women. Some of the findings on this are detailed in the post.

TAKEAWAY: Accents are often indicative of a person’s ethnicity or national origin, making it something on the basis of which employers should not discriminate. Consult an employment lawyer for assistance.

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