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 8/4/19 we learned that an appeals court backs American Air in disability case, says not forced under ADA to let worker work from home. Kimberly had worked for American since 1991. She was diagnosed with MS. American granted her the accommodation noted in the post based on the disability. In 2013, American merged with US Airways. The duties of her position changed; so did her accommodation (as noted in the post). She was fired when she refused to relocate. She filed suit, alleging that American violated the ADA when it ended the accommodation. The trial court granted summary judgment to American and Kimberly appealed. The post contains her argument on appeal, as well as that of American. The appellate court affirmed for the reasons in the post.
TAKEAWAY: An accommodation for a job may change as the job changes – things are not set in stone.
The post on Monday 8/5/19 noted: “I’m not out here’ as Facebook fishing trip video dooms worker’s FMLA claim. An employee took intermittent FMLA leave many times for the reasons in the post. At one point, the employee was in a co-worker’s live video on Facebook of a fishing trip during an FMLA leave. The employer asked about the video; how he responded is in the post. When he was fired, he sued. He lost for the reasons noted in the post.
TAKEAWAY: Just because someone is having fun while on leave does not mean that person is abusing the leave – get all of the facts and meet with an attorney before taking adverse action that may come back to bite you.
The post on Tuesday 8/6/19 was about another EEOC suit based on sexual harassment – ugh. So what happened? Allegedly the owner and top manager of 2 companies named in the post subjected female employees to a sexually hostile work environment. How? By crude sexual comments. Yelling at female employees and using obscene sexist epithets. And more noted in the post. Many female employees quit when the behavior continued after they complained.
TAKEAWAY: It is not fun and games – it is illegal and you will be sued – don’t harass employees by any means.
The post on Wednesday 8/7/19 told us a mother claims she and her family were kicked out of a community pool due to the color of their skin. It happened in a planned community (in Texas) the first time she and her kids used the pool. What happened after that is in the post. But unfortunately it didn’t end there – the police arrived. When questioned by the media, the homeowners’ association had a different story – see the post. The cameras might tell who’s right.
TAKEAWAY: All associations should make sure to have the facts – and that they support whatever action the association will take – before stepping in a quagmire. Consult a community association lawyer.
In the post on Thursday 8/8/19 we said to pick your procedure::EEOC launches parallel gender discrimination pay suits under different statutes. The suits were filed in federal court in Maryland. The first case was filed on behalf of a single female manager alleging that she was paid less than her male subordinates. The second case was filed on behalf of 11 female security guards who allege they were paid less than male counterparts. While they both allege pay inequality, different statutes are involved. In the first case, the EEOC must show the company paid at least one male more than the female for substantially the same work as detailed in the post. If it meets that burden, the case then proceeds as in the post. However, that is contrary to the second case. There, the EEOC has issues of both class and statute. The post explains it in more detail, including the burden-shifting there. What is interesting is how the second case differs by being brought by the EEOC instead of a private party – see the post for the differences.
TAKEAWAY: The EEOC is not shy about taking positions it thinks it can sustain – here it is on one field with 2 plays at the same time. Employers beware the many arrows of enforcement – and stay the legal course.
The post on Friday 8/9/19 asked: Are you using the correct severance agreements? These are legal documents – involve an employment lawyer. What happens if it is not enforceable? As noted in the post, you “just gave the employee just enough money to engage an attorney on retainer and fund a lawsuit.” So what should the agreement include? First, anything to deal with the employee’s protected characteristics. Examples are in the post. Also any required language to exhibit a knowing waiver. Again, examples are in the post. Many other considerations are also listed in the post.
TAKEAWAY: Don’t just use a form – or even the one you used the last time – consult your employment lawyer to make sure what you want the agreement to contain is legal and what it actually contains.
Finally, in the post yesterday 8/10/19 we saw that Party City settled an EEOC pregnancy and disability discrimination suit. We noted this is probably not an invited guest at your next party … Here, Party City agreed to pay $39,000 and other relief. The EEOC alleged that Jahneiss was fired based on her pregnancy and related medical condition. In December 2015, she sought both medical care and an accommodation. Her store contacted HR. What happened next is in the post and led to an EEOC charge and probable cause finding. It then filed suit (after conciliation failed). And now the proposed settlement – whose terms are in the post – has been approved by the judge.
TAKEAWAY: Treat pregnant employees the same as other employees – and don’t take adverse action against them solely due to the pregnancy. If you do, they will end up happy with your money.
York, Pennsylvania 17403