Proof needed for sexual harassment liability; the meaning of “equal work” under the Equal Pay Act; vaccines and reopening facilities in condo/HOA communities; and more in Our Social Media Posts This Week, May 9 – 15, 2021.

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.

mootness as no longer necessarily ending ada suits

In the post on Sunday 5/9/21 noted that a recent  SCOTUS  decision may  challenge  provider ADA compliance. This decision has a possible extensive reach, so we suggested you read the post.  You probably know that health care providers often face ADA suits from patients who challenge disability access policies or procedures. The biggest things are sign language interpretation and other aides/services to deaf persons, physical accessibility barriers for patients with mobile disabilities, and accommodations under the polices/procedures as a whole. So, what have the providers normally done in the face of those suits? Remove the barrier or change the policy. Then what happens to the suit? See the post. But the Supreme Court’s Uzuegbunam v. Preczewski decision  may change that.  The holding dealt with the mootness of a suit after the defendant changed the offending policy or procedure. How it affects such suits going forward – and the broad impact this could have in similar situations – is in the post.

TAKEAWAY: Correcting something, or offering an acceptable accommodation, may no longer make an ADA suit go away; talk to your employment lawyer.

evidence needed to prove sexual harassment liability

The post on Monday 5/10/21 noted the subject employer not liable for sexual harassment (and why it made perfect (legal) sense). Heather Lopez worked in a Whirlpool factory building refrigerators. She alleged that in August 2015, Brian Penning, a coworker, came up behind her, “putting a hand on her shoulder and caressing her or talking quietly about something, just violating her space in general.” She told him to back off; his response is in the post.  Things then escalated in April 2016; see the post for what she alleges was happening. Two very specific sexual-related incidents noted in the post were not reported to HR.  In Summer 2016, Penning took on some supervisory duties. When it affected Lopez, she acted as noted in the post, one time refusing a directive to wear PPE. Then she filed her first written complaint. The 3 things she listed are in the post. The next day, Penning allegedly acted as listed in the post. Lopez resigned and sued for sex discrimination and retaliation. Lopez lost at the trial court and appealed, which is where this ruling comes in. The court affirmed – its rationale is in the post and makes perfect legal sense.

TAKEAWAY: Discrimination and retaliation are not condoned, but not every allegation of that type of conduct is legally sound – engage employment counsel to assist with your case.

are pigs allowed as pets
in condo/hoa communities?

The post on Tuesday 5/11/21 told us that pet pig ‘Arnold Ziffel’ can stay at home in the HOA, a court rules. The HOA filed suit February 1st because the owner was keeping a 300-pound pig in his home. The owner’s wife is Vietnamese and the pig holds significance – see the post. The HOA alleged a violation of the Governing Documents – see the post. The decision turned on whether Arnold ( a female who is quite spoiled – see the post) was a “household pet”.  The basis for the court’s ruling is detailed in the post. The owners thereafter filed a federal civil rights suit against the HOA for which the timing is to be noted (the allegation is that the HOA’s rules were amended after they learned about the wife’s nation of origin). The federal suit alleges an FHA violation.

TAKEAWAY: Governing Documents are to be followed by everyone in the community, but how they are interpreted may not be what was intended. Specifics might be needed. Consult a community association lawyer.

equal pay act and definition of equal work

From the post on Wednesday 5/12/21 we asked: Should I stay or should I go? Court finds gender discrimination in retention raise. Ok, so this was a case under the Equal Pay Act. That means the plaintiff had to show that employees of the opposite sex were paid different wages for equal work. Should be easy, right? Well, no, because “equal work” is not a term defined in the statute. That’s why this case arose. Dr. Jennifer Freyd was a trauma expert, editor of an academic journal, investigator at a dynamics lab (names after her), and also a teaching professor. In 2014 she found out she was being paid less than four of her male colleagues with the same rank and tenure. Knowing how the university could increase professors’ salaries (detailed in the post and relevant to the outcome), Dr. Freyd did a regression analysis. The results are noted in the post. When the University did its own analysis, it found a pay discrepancy, but was able to tie it to one of the ways a professor could get a raise. She asked for a retroactive raise, the university said no, and so she sued. Dr. Freyd lost on summary judgment in the federal trial court – on the bases noted I the post. She then appealed. And was successful in getting summary judgment reversed, meaning she gets a jury trial. The appellate court looked at the definition of “equal work” (its analysis and ruling are in the post) and what the claim was for a disparate impact under Title VII (and again, the analysis and ruling are in the post). While this occurred in the higher ed setting and is not a final ruling on the merits, it does guide employers in viewing their pay practices, especially if there is a disparate impact.

TAKEAWAY: Make sure pay practices treat all similarly situated employees the same – get a legal opinion on how large the group might be. Otherwise, you might find yourself in legal hot water under the federal Equal Pay Act.

eeoc litigation date 6 months pre- and post-covid –
interesting and helpful

In the post on Thursday 5/13/21 we learned about EEOC litigation data: 6 Months with and 6 months without COVID. The data are certainly interesting! The data set covers the period September 2019 – September 2020; COVID hit fast and hard in March 2020, the midway point of the data set. So, what are some of the things the data show? The number of charges filed with the EEOC dropped (again!) in FY20. This past year saw the lowest number of filed charges since 1997. But on the other end of the spectrum, recoveries by the EEOC totaled $106.1M, the largest amount in the past 16 years. How many suits the EEOC filed and how many more were resolved, is noted in the post. The recoveries are also broken down by type of claim, with Title VII sitting at the top of the heap (and others increasing significantly as noted in the post). What else does the date tell us? Even though there were fewer charges, voluntary settlements brought in a huge amount for aggrieveds and slightly more cases were found to have merit (the numbers are in the post). And the most frequently filed claim (56.8% of all charges) and the next three (at 36.1%, 32.7% and 31.7%)? See the post.  The second-most filed category reflects an EEOC priority; that will only increase with WFH and RTW accommodation claims sure to take the forefront. There are also other types of claims to look out for as noted in the post. Employers can learn a lot from this data set.

TAKEAWAY: To avoid becoming a literal statistic, train employees and have in place good polices to combat discrimination and harassment; make sure they get the blessing of an employment lawyer.

vaccination and reopening common facilities in condo/HOA communities

The post on Friday 5/14/21 was about community common facilities and COVID: reopening and vaccinations. As more and more people live in panned communities (condo, townhome and single-family HOAs), issues surrounding the use of common facilities take on more import. Never more so than now as we come out of the COVID tunnel and associations decide whether and how to reopen common facilities (especially pools and clubhouses). Given the status of vaccines, one question that occurs frequently is whether proof of vaccination can be required as a prerequisite to use of the common facilities. The easy answer is yes, it CAN be required. The more difficult question though is WHETHER it should be required. Pennsylvania does not have a law protecting associations from liability for COVID-related claims (as does FL – see the post), so that may muddy the water. What Pennsylvania does have is required compliance with the federal Fair Housing Act and that prevents discrimination on the bases which form the most common reasons people do not get vaccinated (see the post for the 2 bases).

TAKEAWAY: Any reopening plan must include how the association will accommodate those who cannot meet certain requirements of the plan based on a protected characteristic – work on the plan with a lawyer knowledgeable in community association law.

nielsen settles racial discrimination lawsuit by prominent executive

Finally, in the post yesterday 5/15/21, we learned that Nielsen settled a federal lawsuit by an executive who alleged racism blocked promotions. Cheryl Grace, a Black female executive based in Chicago, accused Nielsen of racism. She was the former SVP of US Strategic Community Alliance and Consumer Engagement; the settlement is confidential but we can glean some information from the suit itself. Grace alleged that racism in the C-suite blocked promotions, despite high performance. And then more – see the post. Nielsen denied any discrimination or retaliation. So, was the settlement arrived at because of a year of protests planed by the Southern Christian Leadership Conference? Or the facts of the case? Or something else? See the post.

TAKEAWAY: Suits are often brought against employers alleging illegal discrimination, harassment or retaliation; many settle without court decisions. The easiest way to not be a part of any of that is to treat all employees equally and legally.

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