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 9/22/19, we saw that Facebook comments about employee did not create a hostile work environment. Huh? You (should) know that the standard to show a hostile work environment based on race or sex seems to have been lowered recently. But the federal appellate court that governs in PA bucked the trend, if only this once. In the case in the post, Chinery ran for plaintiff of the local flight attendants’ union. Part of her campaign is in the post. She alleged that a group of attendants started to harass her on Facebook. How they did that is in the post. She filed an internal complaint, nothing happened, so she then sued. On appeal, the Third Circuit found that the comments did not meet the severe and pervasive standard to be considered actionable. Part of the analysis is in the post.
TAKEAWAY: At least in PA (and other states under the purview of the Third Circuit), there is a higher bar to find an employer liable for harassment on social media (but know what that bar is).
The post on Monday 9/23/19 told us that Walmart paid $100K to settle EEOC allegations it didn’t accommodate deaf workers. Here, the allegations included that if did not provide sign-language interpreters and more in the post. The settlement bars the store from violating the ADA, including retaliation, and the several other things in the post (in addition to the monetary payment). Why those other parts of the settlement are important is in the post. This case comes on the heels of another recent one involving d deaf job applicant who could not complete the application because it included an exam with an audio portion with no captions or other visible accommodation for the hearing-impaired. An accommodation request was denied there. That settled, as noted in the post. And yet a third case involving a deaf applicant is also noted in the post.
TAKEAWAY: Being hearing-impaired does not equate to being ineligible for a job – the employer must try to find an accommodation for the individual that is reasonable and does not pose an undue hardship.
The post on Tuesday 9/24/19 asked a question: Does an Association president have the right to residents’ email addresses? The initial question is how the Association obtained the email addresses. If they were provided by owners, then the next question is for what purposes the owners allow the emails to be used. The answer may also depend on other factors noted in the post.
TAKEAWAY: Being on the Board of an Association and being privy to more information than non-Board owners does not necessarily translate into the freedom to use that information however and whenever you want – contact a community association lawyer for assistance.
The post on Wednesday 9/25/19 told us that a trans woman sued a convenience store for harassment and discrimination. What happened? Judi worked at a Circle K store for just over a year. She accused co-workers of homophobic harassment by the comments and words noted in the post. But wait, there’s more. Her manager then got into the mix, doing the things noted in the post. Judi reported it all to the corporate office, but they did nothing – and denied her a promotion. Later, after she told her manager about it and performed in the city’s gay pride parade, but the manager still scheduled her to work, she was fired. How did she find out? See the post. Yes, suit has not been filed.
TAKEAWAY: The issue of whether sexual orientation is protected under Title VII is currently at bat at SCOTUS – a decision will (hopefully) put all of these questions to rest one way or the other.
In the post on Thursday 9/26/19, we learned that an unenforced policy may become unenforceable. Take heed. So, your company has policies, right? And not all of them are enforced, right? Well, that might be a problem. Especially if enforcement is not even – and when there is enforcement, it ends up being against someone in a protected class. The post gives an example of a case where 2 probationary employees did the same thing, but only one was discharged. How and why that played out the way it did are in the post.
TAKEAWAY: It’s ok to have policies, but make sure to evenly enforce them. Any difference in enforcement should be run by an employment lawyer to ensure legal compliance.
The post on Friday 9/27/19 was about political speech in the workplace: a private employer’s guide. Yes, employers can regulate political speech in the workplace. BUT they must do it legally. That means taking some things into consideration, first and foremost the National Labor Relations Act. As we’ve said over and over, certain sections of the NLRA apply to ALL employers, union or not. How that comes into play in the context of political speech is detailed in the post, along with examples of how it is applied. Another thing to keep in mind is that political speech that triggers potential discrimination claims is probably protected. Again, how that plays out is in the post. So, what should a conscientious employer do? Have in place a carefully drawn policy, or perhaps take advantage of the other alternatives noted in the post.
TAKEAWAY: Trying to regulate political speech in the workplace can be tricky – consult an employment lawyer to make sure you don’t step on any land mines.
Finally, in the post yesterday 9/28/19, we saw that No, FMLA does not grant you a license to threaten your co-workers. Sees simple, but let’s delve a bit deeper. Paul was (or felt) harassed by co-workers, so he decided to do something about it. He headed for Facebook. What he posted is in the post. Another employee brought the post to the attention of the employer, FedEx (which has had many scrapes with the law). It investigated; what happened during the investigation is in the post. If then fired Paul. Nope, not the end of the story. Paul had been taking intermittent, frequent FMLA leave prior to termination. Post-termination, he alleged FMLA retaliation. In another decision by the federal Third Circuit, Paul lost. How the court analyzed the case is in the post.
TAKEAWAY: If there is a valid, legal basis upon which to take adverse action (including discharge) against an employee in a protected class, an employer may take that action.
York, Pennsylvania 17403