In the post on Sunday 12/18/16 we noted that same-sex harassment is not actionable when not based on gender. We know that both opposite sex and same-sex harassment can be illegal, but either way it must be based on gender. That point was made recently in a same-sex case in a federal court binding on PA. Betz was a nurse alleging constant sexually offensive working conditions, including “licking, groping, making lewd gestures, or pretending to grope each other’s breasts and genitals ….” More is in the post. Betz complained and was terminated in retaliation. She lost because gender was not the basis of the harassment.
TAKEAWAY: Harassment should not be tolerated, especially if it rises to the level of illegality as based on gender.
The post on Monday 12/19/16 noted that age discrimination is starting to hit workers in their 40s. Know the law. “The law” being what is meant to protect “older workers” and “older” meaning age 40 or older. Not senior citizens. AARP even filed suit for age discrimination – details are in the post. This is the tip of a massive iceberg that will affect companies of all types and sizes.
TAKEAWAY: We’ve said it before and will say it again: don’t take adverse action against anyone, especially one in a protected class such as age, without a valid legal basis.
In the post on Tuesday 12/20/16 noted that a healthcare entity settled a disability discrimination suit (and asked: Shouldn’t it have known?). Sharp Healthcare has agreed to pay $90,000 to settle the suit filed by the EEOC. What was it about? Sandra applied for a surgical scrub technician position; she was offered the job contingent on passing a medical exam. Later Sharp rescinded the offer based on what it perceived to be a disability related to a minor ankle ailment that wouldn’t have affected her performance. She later got the same job at another medical facility. The monetary settlement is in addition to other things Sharp agreed to that are in the post.
TAKEAWAY: Before taking adverse action against an employee or applicant, make sure there is a valid legal basis for the action.
The post on Wednesday 12/21/16 told us that Airbnb Terms of Service blocked a discrimination case in court. Huh? A proposed class action suit in federal court was blocked by Airbnb’s Terms of Service – instead the matter goes to private individual arbitrations. The suit alleged systemic discrimination as a result of its system software, specifically impacting African-Americans consumers using the service. How it did that is in the post.
TAKEAWAY: Whether in the employment or public accommodation context, make sure you know the rules of the game in case you get called on an out.
In the post on Thursday 12/22/16 we warned that a long-term shift of essential functions may remove them from the list. Be careful! Under the ADA, employers need not create new jobs or remove essential functions from existing positions in order to accommodate employees/applicants. In this case, the person was a grocery clerk for over 38 years. He was unable to lift more than 35 pounds. Gradually, other employees did that lifting for him. A new manager asked that HR evaluate his ability to safely perform. HR opined he could not perform the essential functions of the job on appeal, the case was sent back to trial on the issue of whether or not lifting more than 35 pounds was an essential function.
TAKEAWAY: If essential functions are removed from a position, even as an accommodation, the employer may later be unable to take action against the employee/applicant based on an inability to perform those tasks. Think before you act!
The post on Friday 12/23/16 told us a new PA law allows the use of payroll debit cards (if certain conditions are met). This can be good news for employers following the Superior Court’s recent ruling that employees cannot require payment of wages on a payroll debit card. The law was just signed by the Governor on November 4th and is effective in early May 2017. The law contains requirements in order that the use of payroll debit cards be legal – some are in the post.
TAKEAWAY: Employers can now use payroll debit cards as long as the employee has opted in and other conditions are met.
Finally, the post yesterday 12/24/16 noted that the EEOC enforcement plan for 2017-2021 focuses on the new economy and anti-Muslim bias. It is not really that limited, including Muslims, Sikhs, and those of Arab, Middle Eastern and South Asian descent. It also includes discrimination affecting temporary workers, staffing agencies, independent contractor relationships and the on-demand economy. Some of the priorities are listed in the post.
TAKEAWAY: The EEOC becomes ever more watchful over the workplace and the protection of employees – know the law and follow it.