EEOC’s AI guidance; religious freedom vs discrimination; condo/HOA liability for common areas & contractors; $MM award against Starbucks; and more in Our Social Media Posts This Week, July 2 – 8, 2023

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.

eeoc latest ai guidance sends warning to employers: 5 things you need to know

The post on Sunday 7/2/2023 told us the EEOC latest AI guidance sends warning to employers: 5 things you need to know. Artificial intelligence was to change the world, and indeed it has in many ways, but employers need to go forth carefully and considerately. The EEOC will be watching when it comes to the use of AI for hiring and other employment-related actions. So let’s look at the Guidance (which is linked in the post) and some of what it tells us. First, the use of AI could indeed be a legal violation. Examples include a resume scanner that prioritizes applications by certain keywords, video interviewing software that evaluates candidates based on facial expressions and speech patterns, and more as noted in the post. And even if there is no intentional discrimination, employers might find themselves on the wrong end of a disparate impact claim when a facially neutral process ends up with a statistically significant negative impact on a protected class. And how do you know that? The “four-fifths” rule which is detailed in the post (as to explanation and example). So how to try and avoid that? Self-audits – testing the AI in various ways to ensure proper applicability and no violations (including disparate impact). And what if you contract with a vendor to use AI and a problem crops up? See the post.

TAKEAWAY: AI can be a great help if used properly and legally – but it must be used properly and legally.

software vp fired for using “assigned by god” as preferred pronoun sues employer

The post on Monday 7/3/2023 told us a software VP fired for using “assigned by god” as preferred pronoun sues employer. Chard Scharf was VP of Software Engineering at Bitwarden, an online storage service. He filed suit alleging religious discrimination for a violation of Title VII. He says that Bitwarden allowed other employees to display their preferred pronouns on their profiles but he was not allowed to do so. Why? See the post generally. He argues that he would have had to set aside his religious beliefs to comply with what Bitwarden wanted. And that was for employees to add their preferred pronouns to their Slack profiles as part of a company initiative detailed in the post. Scharf added “Assigned by God” as his preferred pronoun and Bitwarden told him to remove it. Why he chose that is also in the post. But it didn’t end there. Bitwarden completed the profile for him. And he was reprimanded over pronoun use relative to a interview with a job applicant – details are in the post.

TAKEAWAY:  There will be a continuous battle between the limits of religious freedom in the workplace and religious discrimination – talk to your employment lawyer before getting caught in the middle.

The posts on Tuesday 7/4/2023, here, here and here, were about Independence Day, but still a workday. Meaning there are still rules and laws with rights and obligations for employees and employers. Know which are which and how to follow through legally.

TAKEAWAY: as with all holidays, celebrate respectfully. Know your employer’s limits.

blasting vulgar, offensive music at work may be harassment in the workplace

The post on Wednesday 7/5/2023 reminded us that blasting vulgar, offensive music at work may be harassment in the workplace. This started with a lawsuit against a company alleging that complaints about offensive music were ignored. Just last month a federal appeals court said that the suit should not have been dismissed. The suit was filed in 2020 by seven females and 1 male, all former employees. Music by many artists, including some mentioned in the post, was played loudly from at least 5 speakers in a warehouse. The plaintiffs thought the songs were offensive because many contained vulgarity and/or depicted violence toward women. One song is singled out – the post goes into why. When the employees complained, management ignored them. The suit also claims that the blaring music fostered an environment where employees shared porn videos and images and more as noted in the post – including the comment the HR manager made to at least one woman. The company, S&S Active-wear, even said at one point that the music was acceptable because it motivated employees. Really?!?! The trial court dismissed the case because since it offended both men and women, there was no discrimination because of sex. The basis on which the appeals overruled that is in the post, including a verbatim quote from the opinion.

        TAKEAWAY: Know the impact of your employees’ actions – and if it is even potentially illegal in any way, make sure it stops.

wrongful death suit brought against condo/HOA association and landscaping and management companies results in $425K settlement

In the post on Thursday 7/6/2023 we saw that a wrongful death suit brought against condo/HOA association and landscaping and management companies results in $425K settle-ment. Pay special attention as this happened in Pennsylvania. Garey Essaf Jr. filed suit in state court (in Delaware County) in early 2021 against Danella Realty and Management Company, the Hilltop Condominium Association II and JMT Landscaping Services. The suit was filed on behalf of Essaf and his mother’s estate. He alleged that in Spring 2020, when his mother was walking through the community, she tripped and fell due to a large hole in the grassy common area which was covered by long grass. The injuries she sustained (detailed in the post) allegedly resulted in her death. Essaf says that the defendants were jointly negligent. The various defenses asserted are also listed in the post. JMT filed for summary judgment, asserting it had no duty to look for or repair holes in that area and Danella and the association said they did not expect JMT to do so (as it was not in the contract). Essaf filed a response to that motion and the judge denied the motion in late 2022 (which left JMT in the case). Then in April and May 2023 the claims all settled, for a total of $425,000. What that represented, and how it was divided, is in the post.

TAKEAWAY: There is always a risk of liability for injury within a community association; all potential defendants must know their obligations and try to fulfill them. Consult a community association lawyer.

condo drama, financial woes dog candidate, cost association

The post on Friday 7/7/2023 talked of condo drama, financial woes dog candidate, cost association. This is crazy! The Bennie Dillon condo was not on a good financial path. In early 2021, some residents decided that the then-president, Jonathan Turner, had to be stopped from continued deficit spending and board initiatives that benefitted him personally. They even thought there were problems with elections as noted in the post. Turner is a candidate for a city-wide position, but he’s had problems for years related to his condo. They are described in the post. The groups of owners decided that it was wrong for Turner to be president if he was delinquent so they sued in early 2021, asking for his removal. The case was actually a shoo-in as noted in the post. He’s no longer board president. What were some of the things he spearheaded? From 2015 to the end of 2020, he spent down reserves by $240,000, delayed mandatory audits and did a lounge remodel (for $50K!) instead of roof repairs. And what about his actions relative to enforcement? See the post. But he stayed in control via proxies – which he got through the process noted in the post. And now there’s still a suit the Board is dealing with – because Turner signed a management contract to a 5-year contract despite the limit in the rules (see the post).

TAKEAWAY: Directors and officers have a fiduciary duty to the entire association – make sure there are checks and balances. And it is always good to consult with a community association lawyer as to the legalities.

ex-starbucks manager (and others) awarded $25.6M in lawsuit

Finally, in the post yesterday 7/8/2023, we saw an ex-Starbucks manager (and others) awarded $25.6M in lawsuit. You might recall the news from 2018 – when Shannon Phillips was a regional manager. In April 2018 a Philadelphia Starbuck store manager called the police on 2 Black men sitting there without ordering. The police arrested the men (but later released them without charges). This led to a huge national outcry and much internal change at Starbucks – see the post. Phillips said she was directed to put a white manager who, like her, was not involved in the arrests, on admin leave. Phillips knew that the reasons for the leave (which are in the post) were untrue. Phillips objected and was fired a short time later? The suit alleges that Starbucks was just trying to punish white employees in an attempt to show the community it had responded to the incident. And what was Starbucks’ explanation for why it fired Phillips? Also in the post. Unfortunately for Starbucks, that contradicted testimony from a Black district manager whose territory included the subject Philadelphia store. And the award might increase as noted in the post.

TAKEAWAY: Make sure you have solid legal standing before taking adverse action against an employee. It will be costly if you end up a defendant in a lawsuit.

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