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 9/19/21 we saw the EEOC sued Elwood Staffing for disability discrimination. Elmwood is a national staffing company based in Utah. Someone applied for a warehouse position. The person received a conditional offer of employment as a product assembler. But then what did Elmwood (not) do? See the post. And why? Because the applicant does not have a left hand. And what else did Elmwood (not) do? Again, see the post. And that’s why they are now a defendant in a lawsuit.
TAKEAWAY: Treat all applicants (and employees) the same and ensure that legal obligations, including the ADA accommodation process, are followed.
The post on Monday 9/20/21 told us the EEOC was granted exotic injunctive relief in a race discrimination lawsuit against an adult club. Titillated? Let’s look at the background. In September 2016 the EEOC filed suit on behalf of current and former adult club dancers against an adult club, alleging it discriminated against them based on race. In October 2018 the Court issued partial judgment in favor of the dancers – see the post for details. The case proceeded to a jury trial in May 2019 on the remaining issues. The various remedies the EEOC requested at trial are listed in the post. The jury verdict was in favor of the EEOC/dancers (for the items noted in the post). The EEOC then went one step farther: it requested injunctive relief. The defendant club argued that an injunction was not warranted because the EEOC offered no proof of the likelihood of future violations and that the totality of the circumstances should be considered when evaluating the likelihood of future violations. The Court did what the defendant requested: it reviewed the trial evidence … and found the defendant had not carried its burden relative to its argument regarding potential future violations. Among other things (noted in the post), the Court said that even after one of the dancers filed a charge with the EEOC, the club continued to discriminate by instituting a Black dancer quota. All of the things noted by the Court led it to grant the requested injunctive relief. And of what did that relief consist? Seven different things. First, it would last for 5 years. Next, 60 days was reasonable for the appointment or retention of an injunctive relief manager (given that the defendant did not object to same and had over a year to find and employ an HR consultant). The other 5 pieces of the injunctive relief are detailed in the post. The fifth item is pretty key as that addresses one way some defendants have attempted to get out from under judgments in other cases.
TAKEAWAY: Employers must know the breadth of relief potentially available to the EEOC. Consult an employment lawyer to protect your interests.
The post on Tuesday 9/21/21 reminded us that an employee who rejects accommodations loses ADA claims. So what happened here? In 2015 the plaintiff, an account technology strategist, requested accommodation from Microsoft for autism. He asked to only work on one project at a time, for an assistant for admin tasks, and to work form home. He also asked about a possible transfer to an enterprise architect (EA) position. What that entails is noted in the post. When Microsoft told him that some of his requested accommodations were not compatible with the EA role, he withdrew his accommodations request, applied for an EA position, and was then hired and relocated from NJ to TX in Fall 2015. After he began in the EA role in January 2016, his manager had concerns about the things noted in the post. The plaintiff was even removed form working on one assignment. When discussing his performance with this manager, the plaintiff mentioned his autism. He was temporarily removed from the EA role and again requested accommodations. His April 2016 request was pretty long and is in the post. Microsoft agreed to some of the items (noted in the post) but not others (also in the post). Why Microsoft denied some of the requests is in the post (and key). The interactive process continued through July 2016, with the plaintiff continuing to insist on the accommodations Microsoft found unreasonable. Finally Microsoft decided it could not reasonably accommodate the plaintiff as an EA and started to reassign him. The plaintiff placed limits (noted in the post) on positions he’d accept. He finally went out on long-term disability leave in September 2016 and never returned. In 2018 he sued for ADA failure to accommodate, discrimination and hostile work environment. The trial court granted Microsoft’s motion for summary judgment on all claims. The plaintiff appealed. The general analysis upon which the appellate court mace its decision is in the post and is another map for employers and employees when involved in the interactive accommodation process.
TAKEAWAY: Employers need not provide the accommodation requested by an employee or remove essential duties – and employees must accept reasonable offers of accommodation or harm their later ADA claim.
The post on Wednesday 9/22/21 was a report clarifying condo owners’ versus Association’s insurance coverage. This is oh so important to owners and Board members. To start, the condo owner’s policy covers loss of personal items and property and provides liability for most events that happen inside the unit. In contrast. The Association’s master policy usually focuses on the building structure and common areas. So, what types of losses are usually covered by the owner’s policy? Weather damage (lightning, wind, hail, frozen plumbing) and other things noted in the post. Some things NOT usually covered by an owner’s policy are acts of nature like flooding, earthquakes, settling, and more as noted in the post. Before purchasing insurance, owners need to know who is required to repair and replace what; this is detailed in the Governing Documents.
TAKEAWAY: Whether owner or Board member, the proper insurance should be in place; consult a community association lawyer to advise on your obligations and the coverage needed.
In the post on Thursday 9/23/21 we were reminded that buyers of homes in condo or homeowner associations should investigate what they don’t know. You ask what that means. While the post is written with FL law as a backdrop, PA law also has certain requirements. Buyers are entitled to received either a Public Offering Statement (from the developer/builder seller) or Resale Certificate (from a non-developer/builder seller). PA law details the requirements of each document to protect potential buyers. Some things required under PA law are similar to those discussed in the post. One thing noted in the post that holds true under PA law in this author’s experience: The package of documents provided to a buyer often totals more than 100 pages so review is a somewhat daunting task. Few buyers study the material, and those who do have only a short time to complete the task. Almost no buyers ask an attorney to review the documents and that can leave a buyer in same position as no disclosure at all from the seller. So, what types of things might a buyer be interested in? All of the various restrictions, including parking, the types of vehicles allowed, policies on guests, the association’s financial status, and so much more as suggested in the post. And what about information that is available only to owners (or their designees)? The post contains an interesting suggestion as to how potential buyers can get that information.
TAKEAWAY: Before buying, potential buyers of homes in condo or homeowner associations should have an attorney review the various legal documents and explain to them what their rights and responsibilities will be.
The post on Friday 9/24/21 noted: To mandate or not to mandate (vaccinations)? That is the question. A backdrop for the question is the Supreme Court’s decision in a 1905 case wherein they said states could require citizens to receive the smallpox vaccine. 100 years have passed and we are again faced with a pandemic and vaccination questions. Federal agencies including the EEOC, OSHA and DOJ have said that mandatory vaccine policies (with accommodation as legally necessary) are ok. Employee challenges to those mandates have so far failed. And what about private employers who are considering mandating COVID vaccinations? They can, but within the parameters discussed in the post. Part of that includes accommodations; that too is discussed in the post (and gives employers a bit of a roadmap). Finally, though, employers must also consider the potential impact on their labor force of a vaccine mandate. Some food for thought is in the post, including possible ramifications and alternatives.
TAKEAWAY: Mandatory vaccination is legally acceptable, but employers must have in place a plan for accommodation – and know how to deal with any potential fall-out form the policy.
Finally, in the post yesterday 9/25/21, we learned that dairy processor Agropur fired employee rather than accommodate (the EEOC charged). An employee had a severe skin condition. She found out she was allergic to rubber and plastics. She asked for an accommodation to continue working (what she requested is in the post and is quite reasonable). Agropur did not grant the request, but instead made her leave work when she had flare-ups of the kin condition. And what did that lead to? See the post. Eventually she was fired. She filed a charge with the EEOC which, after conciliation failed, filed suit on her behalf. We don’t yet know why Agropur refused the requested accommodation. Stay tuned for potential future developments.
TAKEAWAY: Employers have a duty to provide reasonable accommodation to permit employees to perform the essential functions of their job; don’t refuse a reasonable request or you may be on the wrong end of a costly lawsuit.
York, Pennsylvania 17403