Promotable to expendable to gender bias plaintiff; condo vs HOA fees & fines; EEOC hearing disabilities guidance; sexual identity clash with religious freedom; and more in Our Social Media Posts This Week, Feb. 12-18, 2023

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.

how does an employee go from “promotable” to “expendable” to Plaintiff claiming gender bias?

The post on Sunday 2/12/2023 asked: How Does An Employee Go From “Promotable” To “Expendable” To Plaintiff Claiming Gender Bias? Well, let’s see. First, know that this case is from the Third Circuit, the federal appellate court whose decisions are binding in Pennsyl-vania. The plaintiff is Amy Brown, a female who worked as a night manager in Ametek’s finance department. Two years before Brown was hired, Ametek had hired a man, Robert Virelli, in a similar position. Both Brown and Virelli were Senior Managers in 2011. By 2017, each sought promotion to Director. In 2018, Ametek promoted Virelli but not Brown.  The difference cited by Ametek (see the post) seems reasonable on its face, but not when you start digging (which of course occurred through the course of the litigation). And there was a “smoking gun”, Brown’s evaluation (with a longer title), where Brown was rated as ‘promotable” by her direct supervisor. But that was later changed (lowered) to “expandable”. Why? See the post. And then there was more in the ratings saga – again see the post. The result is that the appellate court found a genuine dispute and sent the case back toward trial on Brown’s gender discrimination claim. What could Ametek had done differently that would have been of great help (and possibly dispositive)? See the post.

        TAKEAWAY: There is almost no situation where documenting the reason for a legal action will hurt you, so just do it. And train your managers to do it too.

hiland dairy to pay $140,000 to settle disability discrimination lawsuit

The post on Monday 2/13/2023 told us Hiland Dairy to pay $140,000 to settle disability discrimination lawsuit. Sad because this was so easily avoidable. Hiland is a large dairy-product producer and distributor based in Missouri. It is also a defendant in a suit field against it by the EEOC. Why? The EEOC alleges that Hiland refused to hire a man because his vision was impaired. Allegedly Hiland initially offered a position knowing he had the disability, then withdrew the offer after a pre-employment medical exam. The doctor said the man was a “safety concern”; what he based that opinion on is in the post. And that’s where Hiland stopped. It did not engage in the interactive accommodation process to see if anything could be done to alleviate the safety concerns. The suit, filed in May 2021, was settled by Hiland’s agreement to monetary damages and more as noted in the post.

TAKEAWAY: Know what is required of you under the ADA and follow through – get advice from an employment lawyer too.

The several posts on Tuesday 2/14/2023, here, here and here, brought a Valentine’s wish the day not come back to haunt employers if workplace hearts worn on a sleeve are broken. Think about it …

TAKEAWAY: Be wary of workplace romances – which employers cannot prevent but can control – and make sure nobody is put in a position that might lead to legal liability for you as employer.

understanding condo vs hoa fees and fees vs fines (aka community association cheat sheet).

The post on Wednesday 2/15/2023 was about understanding condo vs. HOA fees and fees vs. fines (aka community association cheat sheet).  Condo fees (also called assessments or dues) cover those things that make up the operations of the condominium association including the repair and replacement of common elements (everything other than what is owned by association members which is generally inside the four walls of their unit). Examples of the items that make up condo fees are in the post. HOA fees are similar in that they are for association operations including repair and replacement of common elements, but a big difference is that when dealing with detached homes, owners (usually) own the entire building and perhaps some land too. Examples of items paid for by HOA fees are also in the post. An interesting statistic on average HOA vs. condo fees (and the reason) is in the post. The post also delves into the difference between fees (discussed above) and fines (levied by an association for a violation). Examples of the types of things that are considered violations and result in fines are in the post.

        TAKEAWAY: This is a nice general outline – but consult a community association lawyer for specific questions/issues and to ensure you know your rights and obligations in your condo/homeowners’ association.

burlington insurance co denies coveerage for $5M condo water damage – implications for you?

In the post on Thursday 2/16/2023 we learned that Burlington Insurance Co denies coverage for $5M condo water damage. This case comes out of federal court in NJ, but pay attention. The associa-tion filed a $5 million suit in state court against its contractor, CCC Renovations, for construction defects that resulted in water intrusion in the building’s façade. The parties settled for $5M in 2018 and the association then pursued CCC’s insurer, Burlington. Burlington has argued that it is not responsible. Why? In its recently-filed motion for summary judgment (a procedural document asking the court for judgment in its favor at a fairly early stage) it says the building had water issues long before it issued its first policy covering CCC. And why does that matter? See the post. But that’s not all, Burlington also alleged another (interesting) basis for judgment in its favor as outlined in the post. So now we await the court’s decision …

TAKEAWAY: This case has possible implications for all condominium and homeowners’ associations; discuss the legal issues with your community association attorney.

eeoc updates guidance on ada and hearing disabilities

The post on Friday 2/17/2023 told us the EEOC updates guidance on ADA and hearing disabilities. The guidance was issued in late January 2023; it discusses how the law applies to job applicants (yes, remember applicants!) and employees who are deaf, hard of hearing or have other hearing conditions. The guidance contains Q&A on pre- and post-offer inquiries, technology that might enable free or low-cost reasonable accommodation, safety concerns, and potential discrimination scenarios addressing possible accommodations. An example from the guidance as to a potential accommodation is in the post. The guidance was issued after several charges/suits involving alleged disability discrimination against persons with hearing disabilities, two of which were in January and are discussed in the post. The guidance is probably overdue based on the huge increase in remote work since the beginning of the COVID-19 pandemic. Just one way employees might have been affected is noted near the end of the post.

TAKEAWAY: as with all disabilities, know the law and your rights and obligations relative to the accommodation process for those with hearing disabilities. Get assistance from an employment lawyer if warranted.

transgender worker sues employer for denying “gender-affirming” health coverage

Finally, in the post yesterday 2/18/2023, we saw a transgender worker sues employer for denying “gender-affirming’ health coverage. Sexual identity can conflict with religious freedom. Lillian Bernier, 31, is a biological man who identifies as a transgender woman. Bernier filed suit against his Christian employer, Turbocam, a company that makes parts for the HVAC, automotive, aviation and space exploration industries, after it denied coverage for ‘gender-affirming’ health care (what exactly Bernier wanted is in the post). Bernier says he lives with gender dys-phoria. The suit was filed against Turbocam and the company that administers its self-funded health coverage plan under state law, Title VII and the ADA. Background details about Bernier are in the post. Turbocam says that it supports Bernier in its own way, consistent with its “Mission, faith and the law”. Turbocam offered what it thought was sufficient to fulfill its obligations, but Bernier did not agree – see the post.  

TAKEAWAY: There are and will continue to be more and more conflicts at the intersection of sexual identity and religious freedom. Eventually they will wind up at the US Supreme Court.

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