Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 2/11/2024 was no laughing matter – a lesson in hiring discrimination from Katt Williams’ viral interview. Yep, comedian and actor, Micah “Katt” Williams officially broke the internet. Let’s find out why.
Katt’s viral interview on former NFL star Shannon Sharpe’s, podcast, “Club Shay Shay,” has been viewed over 50 million times (and counting) since it aired on January 3, 2024. The interview has so much buzz that even Saturday Night Live could not pass up the opportunity to spoof the interview. In the nearly 3-hour long interview, Katt took shot after shot at his fellow comedians and other celebrities. He made the following incredible claims (among many others):
- He is responsible for a rape scene being removed from the movie Friday After Next;
- Kevin Hart is an industry plant with a manufactured career;
- Ludacris became a member of the Illuminati in exchange for his role in the Fast and Furious franchise;
- Cedric the Entertainer stole one of his jokes in the ‘90s;
And many more listed in the post. It is unclear which of Katt’s claims are true versus exaggerations or outright fabrications, but the internet’s collective detective abilities is trying to find out.
What is interesting is that few of those mentioned by Katt have issued direct denials. For one, Ice Cube denied the accusation that there was ever a rape scene in the script for Friday After Next. And the other denial is noted in the post.
Whether or not Katt’s accusations are true, the interview gave the world a closer glimpse into Katt’s background, approach to his craft, and relationship to others in the industry. And as relevant here, it also highlighted Katt’s practices as an employer.
At one point Katt said that he hires women only for his staff other than for a few unidentified specific roles. And that is problematic as noted in the post. Normally an employer may not discriminate based on race, color, national origin, religion, sex (including gender, pregnancy, sexual orientation, and gender identity). There is a limited exception to the prohibition on discrimination based on sex, religion, or national origin as also noted in the post. But the exception is for the very rare instances in which a person’s sex, religion, or national origin may be necessary for the normal operation of the business (e.g., religious institution hiring only members of the religion as clergy or the other things listed in the post). Katt’s personal preference for being surrounded by women will not suffice. So what advice would an employment lawyer give to Katt? See the post.
TAKEAWAY: Employers should not discriminate in hiring on the basis of any protected characteristic. Just don’t.
The post on Monday 2/12/2024 explained that no reasonable accommodation means no disability discrimination claim. A ninth-grade English teacher requesting indefinite leave was not a qualified employee under the federal Americans with Disabilities Act (ADA), the Court of Appeals recently ruled, thus affirming summary judgment for a private preparatory school in MA. Let’s dive deeper.
Three days into the 2019-2020 school year, on Sept. 5, the teacher had hip replacement surgery and told the school that she expected to be out for four weeks. At that time she had accumulated the maximum 65 days of sick leave allowed under the school’s policy. The school granted the leave of absence and hired a substitute on a per-day basis to cover the teacher’s classes. Five weeks later, on Oct. 13, the teacher emailed the school that she had to have a second surgery and requested three more months of leave for recuperation and physical rehab. The school approved the extended leave through Jan. 5, 2020, but told her that she would need to provide clearance from her doctor to return to work. The school also notified her that she qualified to apply for long-term disability as of Dec. 2 (when she would have used 59 of her 65 sick-leave days).
After the second surgery, an infection ensued that required a third surgery on Nov. 27. Her doctor stated on the long-term benefits application form that she would have a total temporary disability for 3-6 months. The school sent the doctor an “accommodation request inquiry form” in early December 2019, related to her ADA accommodation request – what it specifically requested is in the post The doctor’s response dealt with substantial limitations in several major life activities (as listed in the post) and explained how that might impact her ability to perform her job (see the post). In response to the question “Do you have any suggestions regarding possible accommodations to improve job performance? If so, what are they?” he wrote, “She should be on total temporary disability.” The school contacted the teacher on Dec. 26 to inform her that her employment was terminated, effective immediately, because she had exhausted her FMLA leave and all PTO, had been absent from work since September and was expected to be unable to return to work for another 3-6 months, and more as noted in the post (which is the crux of the matter).
Not surprisingly, the teacher filed suit alleging disability discrimination in violation of the ADA (and MA state law). The district court granted summary judgment to the school (on the basis noted in the post). The teacher then appealed. In its review, the appeals court held that it did not need to go beyond the three-step McDonnell Douglas burden-shifting framework (which is detailed in the post for an easy reference). The appeals court found that the teacher had not demonstrated that she was a qualified individual who could perform the essential job functions—in this case, regular attendance—with or without a reasonable accommodation. The court disagreed with her argument that additional leave was a reasonable accommodation in this case. Instead it found merit in the district court’s reasoning (in the post). And there was something else that the appeals court added in support of its decision – see the post. So the appeals court affirmed the district court’s dismissal of both the ADA and state law claims.
TAKEAWAY: applicable state disability law may differ from the ADA. Know which law applies to a given situation at a given time and what must be done to comply, Get legal assistance.
The post on Tuesday 2/13/2024 told us Teamsters union pays $2.9M to settle racial discrimination lawsuit. Thirteen former Black and Hispanic employees of the Teamsters International Union had filed suit against the union and its president, Sean O’Brien, alleging racial discrimination over their firings after O’Brien assumed the helm in March 2022. The suit was filed February 2023, alleging violation of the DC Human Rights Act. Now the Teamsters have paid $2.9M to settle the suit, according to three union officials. In an email seen by the Guardian, the Teamsters – a union of 1.3 million members – asked its executive board to approve the settlement with no admission of liability (i.e., denying any wrongdoing). “I approved it because of the financial liability. I believe had it gone to court it would have cost our members a lot more,” said John Palmer, a Teamsters executive board member.
The suit alleged that the Teamsters fired people of color and “turned the Organizing Department from a diverse department into a majority white department”. The resulting affect on the entity is noted in the post, along with statistics supporting the allegations. The lawsuit also claimed that O’Brien “publicly humiliated” the plaintiffs by claiming they were fired because they were “bad apples” and were “lazy” in their work.
Many Teamsters members were already unhappy with O’Brien (for the reason in the post) and now have another $2.9M reasons to be unhappy with him. The suit alleged that the workers had no history of negative performance reviews or disciplinary issues and were not given justification for their firings from human resources, but rather only a note telling them their services were no longer needed. And then “In or around April 2022, Mr. O’Brien gave a speech at Local 186 in Oxnard, California …” with what he said being listed in the post. Plaintiffs alleged the falsity of the comments and that they promote racial stereotypes about Blacks and Hispanics. The suit includes statistics on those fired and those retained, by race; those numbers are in the post. And what about the racial diversity of people hired after O’Brien assumed leadership of the union? See the post on that too.
The Teamsters did not immediately respond to requests for comment about the settlement.
TAKEAWAY: It can be expensive, really expensive, to get caught having acted illegally; just don’t do it. Talk to an employment lawyer to keep on the right side of legal.
The post on Wednesday 2/14/2024 told us court holds federal law governs FAA arbitration dispute with HOA, compels arbitration under preemption of state law. Harbor Homeowner’s Association Inc. sued its insurers in state court seeking to recover damages allegedly caused by the insurers’ failure to pay claims related to Hurricane Ida. The insurers removed the case to federal court on the basis of an arbitration agreement falling under the Federal Arbitration Act (FAA) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention); they also filed a motion to compel arbitration. The HOA argued that arbitration provisions in surplus lines insurance contracts are not enforceable under state law (and other things as noted in the post). The court disagreed, noting that arbitrability under the FAA is a question of federal law, not state law, and it also distinguished the other argument (which again is in the post). The court noted that application of state law does not entail application of applicable federal law simply because the state is within a certain federal circuit. It had more to say differentiating state and federal law (see the post). Based on all of this, the court found that it was constrained to follow federal precedent on preemption, and ordered the parties to arbitrate their dispute.
TAKEAWAY: Know what your condo/HOA insurance policies provide – and be prepared to deal with those provisions.
In the post on Thursday 2/15/2024, we were reminded that condo (and HOA) rules need to be specific to be enforced. Assume a condominium association board is reviewing its rules for possible update. Further assume that one rule provides that the underlayment for hard floor surfaces in the individual units, like wood or ceramics, must meet standards established by the board. Yep, no one on the board can locate any sort of standards that have actually been established. So the question is whether those standards should be in the rules.
It is common for association rules regarding underlayment (or other things including those referenced in the post) to refer to “specifications to be established by the board.” But often the are never actually established! Whenever established, the standards or specifications should be in the rules. When should that occur and why then? See the post.
TAKEAWAY: The Rules should contain all information necessary for implementation and enforcement. Contact a community association lawyer for assistance with drafting or enforcement.
The post on Friday 2/16/2024 noted an employer can require only English be spoken in very limited circumstances. In most circumstances, employees’ communications in languages other than English should not be limited to only those official functions for which they were hired. Rather, employees’ right to speak in languages other than English may only be curtailed in certain narrowly defined situations. And what are they?
EEOC Regulation 29 C.F.R. § 1606.7(a) provides that a rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. A rule like that is presumed to violate Title VII. One example of an unlawful rule is in the post.
Pursuant to the Reg at 29 C.F.R. § 1606.7(b), a workplace English-only rule that is applied only at certain times may be adopted under very limited circumstances. The rule must be narrowly tailored to address the business necessity. Situations in which business necessity would justify an English-only rule include:
- Communications with customers, coworkers, or supervisors who only speak English;
- In emergencies or other situations in which employees must speak a common language to promote safety. An example of this is in the post;
- For cooperative work assignments in which the English-only rule is needed to promote efficiency. Again, an example is in the post;
- And more as listed (and shown by example) in the post.
TAKEAWAY: We can’t say it any better than did the post: an employer should only consider an English Only requirement in very limited circumstances.
Finally, in the post yesterday 2/17/2024, we saw that appeals court tosses jury’s hefty $365M award to FedEx worker. And no, that is not a typo on the award amount! The Court threw out a jury award of $365,000,000 to a worker who sued FedEx for retaliation, concluding that she was not entitled to punitive damages because FedEx made “good-faith efforts” to comply with Title VII.
The case involved Harris, a Black district sales manager, who filed a complaint of race discrimination against her White supervisor after the supervisor suggested she step down due to poor performance. Shortly after the complaint was filed, Harris received a letter from her supervisor requiring her to create a performance improvement plan (and noting possible repercussions if she did not – see the post). Harris then filed another complaint on the basis noted in the post. The supervisor again responded shortly thereafter with another performance warning, after which Harris submitted a third complaint. Soon after that, the supervisor submitted a request for termination to HR, citing poor performance. The request was granted and FedEx fired Harris. She filed suit a little over a year later, alleging race discrimination and retaliation under Title VII.
The case went to trial and the jury found retaliation but not discrimination, awarding Harris $1,160,000 in compensatory damages plus an additional $365,000,000 in punitive damages. On appeal, FedEx argued that the punitive damages award was “unconstitutionally excessive.” The Court agreed – its rationale is in the post – and said that Harris had failed to show FedEx intended to violate the law. Why? Because after each complaint, HR conducted an in-depth investigation including those things the court pointed out that are in the post. Further, the Court noted that the supervisor was barred from disciplining Harris while the investigations were ongoing.
So while the Court dismissed the jury’s punitive damages award, it upheld the retaliation claim, (but reduced the award to the amount, and on the basis noted, in the post). As to the Court’s ruling on FedEx’s request for a new trial? See the post.
TAKEAWAY: An employer doing what it should to investigate complaints should have a defense to a later claim/suit that it did not act properly or legally. Confirm what you need to do with an employment lawyer.
York, Pennsylvania 17403