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.
In the post on Sunday 12/26/2021 we learned that the EEOC prepares to tackle artificial intelligence (AI) and algorithmic bias. The EEOC announced that it is launching an initiative to ensure that AI used at all stages of the employment cycle comply with federal anti-discrimination laws. Why? Because among other things employers now use chatbots to communicate with job applicants to schedule interviews and ask screening questions and use AI to review and screen resumes. And how/why that is (possibly) bad is explained in the post. As early as October 2019 the EEOC was investiga-ting at least 2 cases in this area. In late 2020 there was a Congressional inquiry (see the post) and an EEOC Commissioner publicly commented on the issue on September 2, 2021 (as noted in the post). The EEOC plans to establish an internal working group to coordinate the agency’s work on the initiative, launch a series of “listening sessions with key stakeholders” regarding AI tools and their impact in employment, and the other things listed in the post. Part of what the EEOC Chair said (the entire statement is in the post) is that the EEOC will address workplace bias that violates federal civil rights regardless of the form it takes.
TAKEAWAY: The use of AI by an employer may result in discrimination in violation of law (including Title VII, the ADA, the ADEA or others); be careful how the AI is programmed and what flows from that.
The post on Monday 12/27/2021 told us that the FMLA claim of employee fired while on leave survives motion to dismiss. The upshot is that Hester, who was fired while on FMLA leave after his supervisor told him to apply for an employee assistance program based on his medical conditions, can proceed with his lawsuit. But let’s look at the background. Hester, who has epilepsy and glaucoma, worked for the employer for 20 years as an engineer until December 2018. In March 2017 he had begun reporting to a new supervisor who was aware of his medical history. And it started to go downhill from there as noted in the post. Then around October 2018 Hester applied for and was granted short-term disability coverage related to his epilepsy and glaucoma and FMLA leave based on those same medical conditions. On December 6, 2018, an HR professional fired Hester by phone while he was on FMLA leave. The reasons given for the termination are in the post (as well as the length of time left in Hester’s approved FMLA leave). And oh, by the way, Hester’s wife had cancer and he sometimes had to care for her. Hester filed suit, alleging FMLA discrimination and interference (with his right to reinstatement to his position at the end of the leave). The federal trial court granted the employer’s motion to dismiss (for the reasons noted in the post) and Hester appealed. The appellate court first looked at whether there was any link between the termination decision and FMLA leave request. The court’s analysis of this issue (that resulted in a decision to reverse the trial court and send the issue back) is in the post. The appellate court also examined the reinstatement interference claim – the factors it looked to are in the post. Dismissal of the interference claim was also reversed and that claim sent back to the trial court.
TAKEAWAY: Timing can be key – and can make or break a lawsuit brought against an employer. Consult an employment lawyer about the facts before taking adverse action against an employee on FMLA leave.
The post on Tuesday 12/28/2021 instructed us that a notice of termination can support a discrimination claim. This case comes from the Third Circuit, the federal appellate court whose decisions are binding in Pennsylvania, so pay attention. Kathleen Fowler, a former AT&T employee who was told she might be laid off, can sue for age and disability discrimination even if the layoff did not ultimately happen. Even with that holding, the Court ruled against Fowler who found a new job within AT&T when her position was eliminated in 2016 but was eventually laid off months later. The basis for that part of the Court’s ruling is in the post (and follows the burden-shifting scheme). Now let’s look at some background. Fowler began working for AT&T in 1986. In 2006 she was diagnosed with epilepsy (how she said that was a disability under the ADA is in the post) and in 2015 began treatment for breast cancer. In January 2016, AT&T placed Fowler on “surplus status” – what that means is explained in the post. She found a new job within AT&T but was laid off in December 2016 at age 60. Fowler claimed violations of both the ADA and ADEA. The reason AT&T gave for termination is in the post (and was the basis for the trial court’s dismissal of the suit). In a key holding, the Third Circuit held that being notified of imminent termination is an adverse employment action (and the effect of avoiding termination as held by the Court is noted in the post). But Fowler was still not victorious in the end for the reason noted in the post.
TAKEAWAY: As long as the employer has a valid, non-discriminatory reason for the adverse employment action, there should be no legal liability for that action.
The post on Wednesday 12/29/2021 showed us that a man was told by property management company to take down Christmas lights. Douglas Dwyer said it’s been a labor of love decorating his condo with what he estimates to be about 10,000 lights, but he said the work was well worth his time to brighten his neighbor’s faces. He shared his light show on Nextdoor and foot traffic increased. But then he was told on a Tuesday to have the lights removed by Thursday. The wording of the Governing Documents that was quoted by the manage-ment company as the basis for removal is in the post. And the removal notice was not limited to the holiday lights, but also included the other things noted in the post. Was Dwyer the only one with holiday lights that may have been in violation? See the post.
TAKEAWAY: Holiday lights – and other decorations, landscaping, and more – must comply with the association’s governing documents that anyone buying a home within the association agrees to abide by. Consult a community association lawyer for legal advice on enforcement of the restriction in the governing documents.
In the post on Thursday 12/30/2021 we learned about a condo/HOA community with dozens of wild hogs caught on video marching through neighborhood. Let’s start with the fact that this happened in Texas, so maybe you don’t have to worry. But if not hogs, it might be some other wild animals, so keep reading. Glen Garner woke up to walk his daughter to the bus stop only to find extensive damage from 25 to 30 hogs who had trudged through his front yard and the neighborhood. His home’s camera caught at least part of the rampage. Yes there was damage – as noted in the post. And as to what the homeowners’ association calls a “seasonal problem”, go to the link at the end of the post to see for yourself.
TAKEAWAY: What things might be out of the control of a condo/HOA to manage – and what odd but current things might it need to control anyway? Know the governing documents – and consult a community association lawyer.
The post on Friday 12/31/2021 told us the EEOC settled $1M case with Chicago Meat Plant over racial discrimination claims. The link (that apparently disappeared from the post) is http://ow.ly/FCjf50HlyOY. The EEOC has charged the company with unlawfully harassing black employees, rejecting them for hire, and firing a black employee for complaining. The EEOC’s investigation revealed that the company favored hiring Hispanic employees over African American employees even though the company is located in a largely Black neighborhood on Chicago’s South Side and more as noted in the post. The suit was filed in February 2018 and settled 2-1/2 years later. The settlement involves more than the $1.1M in monetary relief: the company cannot discriminate in the future and must take the other steps outlined in the post.
TAKEAWAY: Treat all employees equally – illegal disparate or discriminatory treatment will come out and will be costly on many levels.
Finally, in the posts yesterday 1/1/2 022, here, here and here, we sent Happy New Year wishes – for a happy and healthy 2022.
TAKEAWAY: Be thankful for what you have now as 2021 has closed and look ahead to a 2022 that has a blank page for you to write on each and every day.
York, Pennsylvania 17403