Below is a review of our posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 8/24/14 confirmed that being hit by a flying hot dog is not an inherent risk of watching baseball (at least in Missouri). A baseball fan was hit in the eye with a hot dog thrown by the team mascot and suffered a detached retina. Jurors found no liability based on that being an inherent risk of baseball. On appeal, the court said there was no inherent risk of being hit with a flying hot dog and sent the case back to the trial court.
TAKEAWAY: While you might think attendance at a baseball game results in assumption of all risks, that is apparently not true as to things that may be related to but not a part of the game.
The post on Monday 8/25/14 talked about the cost for a noose and saying the “N” word, “monkey” and “boy”. About $250,000 after the EEOC’s suit against a trucking company and a favorable jury verdict. Who used those words? The company’s general manager (who was the employees’ boss), dispatcher, several mechanics and other truck drivers (all of whom are Caucasian). The employees complained but nothing changed.
TAKEAWAY: Even if someone says they are joking, employers cannot allow any type of derogation, slur or discrimination in the workplace.
On Tuesday 8/26/14 the post was about a current hot spot for EEOC enforcement, pregnancy discrimination, and how it cost an employer $15,000. For 2 days’ work. The employee worked at a retail store for 2 days and was discharged after telling her manager she was pregnant.
TAKEAWAY: Taking adverse action against an employee because of pregnancy is illegal – just don’t do it. NOTE: taking action against a pregnant employee based on another reason is ok.
The post on Wednesday 8/27/14 reminded us not to address an employee’s FMLA request as was done by this employer. Why? It hits the pocketbook HARD. In this case, a former employee of a supermarket chain got a jury award of about $536,000 when he was discharged after taking time off for back surgery. When the employee requested time off for surgery for something he claimed was work-related, the company denied it was job-related and so denied the workers’ comp request (telling him to switch to a request to use his own insurance). The employee filed the comp claim anyway and took an unpaid FMLA leave for surgery. When his doctor released him to light-duty work, the employer refused the accommodation. He was discharged shortly after (he refused the severance package and decided to sue). What was the sword to the employer’s throat? During trial, the company’s owner admitted that had the employee not gone out on leave for back surgery, he never would have been discharged!
TAKEAWAY: Don’t just refuse an FMLA leave request out of hand – and when you do refuse a request, don’t retaliate against the employee for having made the request.
On Thursday 8/28/14 the post confirmed that name-calling can get quite expensive for an employer. There, the employer, a car dealer, agreed to pay $100,000 to settle a national origin and religious discrimination suit. What happened? The employer’s managers allegedly addressed Arab Muslim employees using offensive slurs like “terrorist” and “Hezbollah” and made mocking and insulting references to the Qur’an and how Muslims pray.
TAKEAWAY: Employers must make sure to respect all religions, even those different from their own; if they don’t, they will pay.
Friday 8/29/14’s post reminded that even though Ramadan is over for this year, employees may still need religious accommodation at other times of the year. While the employer should attempt to grant accommodation requests based upon religious issues, it need not if there will be undue hardship. Employers should consult with an employment attorney as to what may or might be considered an undue hardship for their business.
TAKEAWAY: Remember that as with other areas, accommodation for religion is an interactive process and there is not necessarily just one right answer.
Finally, the post yesterday 8/30/14 was a reminder that a request for FMLA leave can be a hidden request for ADA accommodation. Many employers deny an FMLA leave request (for an employee’s own serious health condition) but then do not look at it under the ADA – this can lead to a lawsuit. Who found this out? Sears (to the tune of $6.2M for 235 plaintiffs), SuperValu ($3.2M for 110 plaintiffs) and Verizon ($20M). Yes, those are millions.
TAKEAWAY: When an FMLA leave request for an individual’s serious health condition is denied, automatically consider it under the ADA – don’t wait for the employee to make a request for ADA consideration.
York, Pennsylvania 17403