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 7/21/19 we learned that an employer will pay $425K to settle suit alleging ‘regular ‘regular and open use’ of slurs. Yep. The employer here is Aaron’s. The settlement has to do with black employees at a warehouse who were allegedly subjected to race-based hostile work environment. It included racial slurs and more noted in the post. Aaron’s will make payment plus other things identified in the post.
TAKEAWAY: Things vary by environment, but make sure not to create one where employees, especially those in protected classes, are adversely affected.
The post on Monday 7/22/19 was an ALERT: SCOTUS says Title VII charge-filing requirement is non-jurisdictional claim-processing rule that is forfeited if untimely asserted. In early June, the Supreme Court finally decided the issue that split appellate courts. The case is Fort Bend County, Texas vs. Davis. In 2010, Davis alleged she was the victim of sexual harassment and retaliation. She filed a charge that was dual-filed with the EEOC; details of the charge are in the post. She checked some boxes on the charge as noted in the post. She got a right to sue letter and then did sue. The employer asked for dismissal and the trial court granted it. The appellate court agreed as to the retaliation claim but reversed on the religious discrimination claim. What the employer argued on remand is in the post. Then the case went back up the appellate ladder and landed at the Supreme Court. The question was whether Title VII’s charge-filing pre-condition to suit is jurisdictional or a procedural prescription that is mandatory? The Court analyzed the issue and issued its ruling – see the post.
TAKEAWAY: Don’t sit on your laurels – raise an objection as to procedural failure to file or lose it.
The post on Tuesday 7/23/19 was about smoking prohibitions in condominium unit or other areas within planned community. You already k now that community association life is subject to the relevant Governing Documents. Smoking can fall into that category. There are certain occasions when smoking can be prohibited (see the post and your Governing Documents). What can and cannot be prohibited or regulated is in applicable state law and, somewhat, in the post.
TAKEAWAY The covenants, restrictions and rules governing a particular community are subject to change; know what they are and how they can be changed.
The post on Wednesday 7/24/19 confirmed that its’s true: not all work restrictions are ADA disabilities. The federal appellate court summed it up nicely: “just because a plaintiff has work restrictions does not mean that he is disabled … simply having a work restriction or being unable to perform a discrete task or a specific job” “does not automatically render one disabled” under the ADA. So what was the background to that decision? In late 2016, the plaintiff filed suit, alleging failure to accommodate and disability discrimination. He was an assembly line worker who had been under permanent work restrictions for over 10 years. On what he based his allegations is in the post. Also, how and why the court ruled against him on the claims is in the post.
TAKEAWAY: Disability under the ADA requires actual limiting impairment; changes in a job may alter the need for an accommodation, so keep the interactive accommodation process alive continuously.
In the post on Thursday 7/25/19 we learned the EEOC says female workers paid less than male employees in case close to home. Parties settle for $50K. Amanda and Beverly worked in sales at Fastenal. Amanda started there in 2012; at that time, she was paid $9/hour while a male in the same position was paid $10/hour. How things progressed is in the post. Only after learning of her EEOC charge did they raise her pay to match that of newly-hired males. Beverly started at Fastenal in 2015 and was also paid less than males in similar positions; she too had her pay raised after the EEOC suit. The EEOC sued on their behalf for violations of the EPA and Title VII. Fastenal’s defense is noted in the post. The case settled prior to trial for payment of $50,000 and other things in the post.
TAKEAWAY: If 2 people are doing the same job, pay them the same (unless there is a legally-justifiable reason for a pay disparity).
The post on Friday 7/26/19 told us a federal appellate court permitted terminated employee to present broad comparisons to others. The court is one with jurisdiction over PA, so pay attention! The defendant was GNC. Andujar, age 59, worked there as a sales associate. He was promoted to store manager and stayed in that position for about 13 years. The types of things on which managers are scored are in the post. Andujar failed on one in 2010, 2011, 2012 and 2013. How GNC reacted is in the post. When he got a fourth failing score in early 2014, they put him on an improvement plan. After insufficient improvement, GNC took the action noted in the post, including replacing him with a much younger employee. Andujar sued for wrongful termination and age discrimination (and under state law). The case went to trial. When Andujar presented evidence of comparators, he used 5 younger employees who had received different discipline after failed reviews. The jury instruction and trial court jury’s decision are all in the post. On appeal, GNC argued that the comparators were not similarly situated and explained how. The appellate court upheld the verdict – its reasoning is in the post.
TAKEAWAY: Comparators need not be exactly similar; differences in treatment will be examined closely, so make sure there is a valid basis for adverse action.
Finally, in the post yesterday 7/27/19 we saw that Hyatt is to pay $100K to settle discrimination suit. We noted that’s a lot of bed-turndowns … The settlement includes payment of $85K for wages and paid leave worth $15K, along with other things noted in the post. So what happened? The EEOC says Hyatt refused to accommodate an employee with a back impairment. He stood at the front desk for prolonged periods which aggravated his impairment and caused severe pain. He asked for a reasonable accommodation (listed in the post) that was at first granted, then withdrawn. The EEOC evaluated whether the requested accommodation interfered with his job – its result is in the post.
TAKEAWAY: If an employee is entitled to an accommodation, and you can accommodate without hardship, do it, just do it.
York, Pennsylvania 17403