Below is a review of the posts (on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 4/28/2024 noted female paramedic’s 96-hour shift may be in violation of Title VII. A federal district court ruled April 15 in Sirmon v. City of McGehee that an Arkansas city may have unlawfully discriminated against a former female paramedic. So what happened? The chief issued a new schedule requiring paramedics to work 48 hours on, then 24 hours off. However, in the transition the plaintiff would have had to work two consecutive 48-hour shifts with no break in between. So based on that and other actions, she sued under Title VII and state law, alleging discrimination on the basis of sex (female). The court denied summary judgment to the City and allowed the discrimination claim to go to trial. On what the court based its decision is described in detail in the post (and provides a road map to litigants).
However, the court did grant summary judgment to the City on the wrongful termination claim. The paramedic allegedly told the fire chief she disapproved of the 96-hour schedule (for the reasons in the post). She then worked the first 48-hour shift, left, and did not return to work for the second 48-hour shift. The chief fired her, citing insubordination and failing to work as scheduled. Here the court granted summary judgment to the City – why it did so, along with a nice explanation of the standard used by courts and an example, are all in the post.
TAKEAWAY: Actions taken by an employer that have an adverse effect on an employee are not always an indication of discrimination, but they can be. Talk to an employment lawyer.
The post on Monday 4/29/2024 told us Pennsylvania federal court allows claims of sexual discrimination by cisgender male to move forward. Yes, cisgender employees can allege discrimination on the basis of sex under Title VII. On April 4, 2024, the Eastern District of Pennsylvania partially granted and partially denied a motion to dismiss filed by a former employee who alleged discrimination by his employer because he was a cisgender male. The judge decided that the employee plausibly alleged a Title VII violation but did not exhaust administrative remedies. Ultimately, the judge allowed the employee to amend the complaint after completion of the administrative process.
Ok, so let’s go back and look at the facts now. The employee who alleged sex discrimi-nation by his former employer is a cisgender male. What he says the employer did is in the post. What cisgender means is also in the post. After employment began, the district manager hired two transgender clerks. The employee says he complained of disparate treatment between transgender and cisgender employees. Then on or about June 4, 2023, the employee was terminated. The employer’s alleged reasons for the termination are in the post. On the same day the employee was terminated, another cisgender employee was terminated for other reasons. The employee sued.
What is interesting about the case is that in opposing the employer’s motion to dismiss, the employee’s argument related to discriminatory treatment of cisgender employees was that “[i]f discrimination based on transgender status necessarily entails discrimination based on sex, then so too must discrimination based on cisgender status.” What else the employee argued is in the post.
Before deciding the employer’s motion to dismiss, the court identified what the employee’s burden was at that point – see the post. The court then analyzed the facts using the criteria and denied the motion to dismiss. The court found that termination of the other cisgender employee did not unilaterally undermine the employee’s Title VII claim. What else the court found is detailed in the post.
But that was not the end of the matter because the court also found that the employee had not properly exhausted his administrative remedies. What the employee did wrong here is laid out in the post. Because of that, the court said the claim was not properly before the court and dismissed the claim without prejudice directing as noted in the post).
TAKEAWAY: It may now be clear that cisgender persons can sue for sex discrimination, but threshold actions, such as administrative filings, can be a bar to suit. Again, contact an employment lawyer.
The post on Tuesday 4/30/2024 alerted us that Sheetz hit with lawsuit for allegedly discriminating against minority job applicants. Yes, that Sheetz, the convenience store chain with over 700 locations across six states. It is now the subject of a suit filed by the EEOC alleging that Sheetz has been applying unlawful hiring practices since at least 2015.
The suit asserts that Black job applicants were denied employment at a rate of 14.5% – what Sheetz told those applicants is in the post. And what about multiracial and Native American job seekers? See the post. The suit was filed in a Baltimore federal court on April 17th and also notes that fewer than 8% of white applicants were denied a job.
The EEOC launched its investigation after two job applicants raised allegations of discrimination. The EEOC seeks an order requiring Sheetz to offer jobs to applicants who were turned away unlawfully (and for more – see the post).
The EEOC said it was unsure if the hiring practices were racially motivated. And they had another question too – see the post. Sheetz’s response to the allegations was in a statement issued April 18 – yep, see the post. Sheetz is a family-run company with over 23,000 employees at its convenience stores and gas stations in Pennsylvania, West Virginia, Virginia, Maryland, Ohio and North Carolina. This case might have a wide impact.
TAKEAWAY: Don’t treat applicants or employees differently on the basis of race (or any other protected characteristic). The cost can be very high both monetarily and in the court of public opinion.
The post on Wednesday 5/1/2024 was about ‘Really frustrated,’ says driver whose HOA banned him parking outside his home.. man is furious after his homeowners’ association told him he couldn’t park his truck on the street. His Ford F-350 is too big to fit in his garage or driveway, so he has few options. Martinez tried to fit the truck in his garage but the door would not close. And when parking it in the driveway, the truck’s bumper hung over the edge into the street. And that would result in him getting a ticket to move the car or be fined or towed. So he parked it on the street despite knowing that HOA prohibited that. And now Martinez has to pay to park his truck elsewhere, sell it, or move.
A manager for the homeowner’s association talked about allowed street parking – see the post. The manager also mentioned the special dispensation Martinez has gotten – yes, also in the post. So what is Martinez doing now? See the post.
Plenty of other community associations also enforce parking restrictions. Just a few examples are in the post.
TAKEAWAY: Condo and homeowner association rules (and other restrictions) apply to everyone equally – and will be enforced. The remedy if you don’t like the restrictions is to get them changed or move.
In the post on Thursday 5/2/2024, it was more ire with owner furious condo’s smoking ban ignored. Can neighbor be stopped? So what is the background? A 55+ condo association that adopted a strict “no smoking” bylaw (details in the post) in 2015. In the past, the association had to get its attorney involved relative to getting a renter who smoked in her rental condo to stop (even though the rental was after adoption of the smoking ban). Now that same renter just received title to a unit from her deceased parents. Another owner wants to know what can be done (short of filing suit) to enforce the smoking ban (taking into consideration what others do – see the post).
This is not a new scenario – one owner wants enforcement but the Board may not act. That leaves the owner to file suit when they may not have the financial ability to do that. Whether any municipal enforcement is possible depends on state and local law (see the post). But there is another possible course of action as laid out in the post. Even then, there is a process to follow.
TAKEAWAY: Both owners and Boards can enforce community restrictions, but it is difficult if a Board refuses to do so. Get a community association lawyer involved early.
The post on Friday 5/3/2024 alerted that a new US Dept. of Labor rule makes more employees eligible for overtime pay. Think back to 2023 when a rule was proposed by DOL that would raise the weekly salary amounts necessary to qualify exemptions for overtime pay under the FLSA. Well, on April 23, 2024, DOL released its final version of that rule. The impact will be on employee classification and compensation and will expand overtime eligibility.
Exemption overtime pay requirements requires that employees must primarily perform exempt job duties, be paid on a salary (not hourly) basis, and earn at least a minimum threshold salary. Those salary thresholds are raised by the new rule for executive, administrative, professional and highly compensated employee exemptions. For the first 3 of those categories, the current salary threshold is $684 per week ($35,568 annually), which will increase as noted in the post. The current threshold for the highly compensated employee exemption is $107,432. The increases there are also in the post.
The new rule, and therefore the first threshold increase, is effective on July 1, 2024. So what should employers do now? Review their employee classifications to determine the rule’s impact (especially as noted in the post). Consider making pay adjustments to maintain exempt status, or alternatively, reclassify employees. And there are other steps employers should take as detailed in the post.
But that is not the end of the road for the new rule. Legal challenges are expected as happened in the past when increased thresholds were proposed. Would any such suit be successful? At least one US Supreme Court Justice has recently hinted at their question; see the post.
Whether the new rule is ultimately implemented remains to be seen, but in the interim, employers should begin taking steps now to prepare for these changes to ensure they are compliant if and when the new rule becomes effective.
TAKEAWAY: Unless and until the rule is stayed (or overturned), employers should prepare for its impact July 1 – talk to an employment lawyer with any questions.
Finally, in the post yesterday 5/4/2024, we saw TA Dedicated to pay $460K in EEOC sexual orientation and retaliation suit. TA Dedicated was formerly known as Transport America; it and Transportation Enterprise Services are trucking companies that operate under the parent TFI International, Inc.. They have agreed to pay $460,000 and (other significant nonmonetary relief) to settle a sexual orientation and retaliation lawsuit filed by the EEOC.
So what was the suit about? The EEOC alleged that beginning in late 2018, workers and supervisors at a TA Dedicated facility harassed two mechanics because they are gay. The harassment included frequent use of gay slurs and other derogatory comments and more as listed in the post. And although HR and management were aware of the harassment, they did not stop it. Instead, after the mechanics reported the harassment, this happened (see the post). After conciliation failed, the EEOC filed suit last year in federal court.
The settlement includes the trucking companies providing back pay and more than $300,000 in compensatory and other statutory damages to two discrimination victims. The settlement also includes the other things noted in the post, which apply nationwide including at TA Dedicated locations in Pennsylvania. And there’s more – protection for employees as detailed in the post and EEOC monitoring.
TAKEAWAY: Discriminatory action can be expensive, whether by way of settlement or a judgment, so just don’t discriminate against employees.
York, Pennsylvania 17403