Proving & damages for age discrimination; sex, ACA and RFRA; non-board member as condo officer; HOA fines for bumper stickers; and more in Our Social Media Posts This Week, June 19 – 25, 2022.

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.

proving age discrimination is hard – but possible; what workers & employers need to know

In the post on Sunday 6/19/2022 we learned that proving age discrimination is hard—but possible; what workers & employers need to know. It starts with the Age Discrimination in Employment Act (ADEA), a federal law. So what does the law do? It protects employees age 40 or older working for an employer with 20 or more employees. Does it apply to government employees? See the post. There might also be state age discrimination laws that vary some from the ADEA. A successful plaintiff can recover several types of damages as shown in a recent suit. Warren started working for Old Dominion Brush Company in August 1988. The company was purchased by Alamo Group in 2017 when Warren was a welding supervisor. What his personnel record was like then is noted in the post. Warren was fired on November 4, 2019. He claims it was based on his age; what the company says is in the post. Warren filed a charge with the EEOC in June 2020. When conciliation failed, the EEOC filed suit in federal court in December 2021. The company filed for summary judgment (essentially meaning that it asked the judge to say that it had not violated the law). But that was denied. The case went to trial in March 2022. It was a mixed jury verdict as noted in the post (but still a warning to employers!). But things don’t stop after a jury verdict. Warren’s attorney then filed a motion for front pay, interest and attorneys’ fees and costs. How much the judge awarded, in addition to pre- and post-judgment interest, is noted in the post (and while it is not a small sum, it is not everything that is recoverable under the ADEA). The list of 6 things/types of damage that an ADEA plaintiff can possibly recover is in the post, starting with back pay. That means what the person would have earned had the wrongful act never occurred. How that is calculated is explained in the post (as well as the person’s duty to mitigate or offset those damages). Another item of damages that is recoverable is lost benefits, such as retirement benefits and health insurance. Liquidated damages are also on the list. A description of what that is, and how it is calculated, is in the post along with details on the other items of damages that are potentially recoverable. Even if a plaintiff doesn’t get all of these types of damages, there will usually be an award of back pay, lost benefits and interest along with attorneys’ fees and costs (the latter of which can sometimes exceed the other damages).

TAKEAWAY: Employers need to be careful when taking adverse action against an employee who is age 40 or over; a finding of age discrimination can be very costly. Get legal advice early on and heed it.

us agencies’ trans care mandates paused in christian group suit

The post on Monday 6/20/2022 told us that US agencies’ trans care mandates are paused in Christian group suit. This is the latest in a continual fight at the intersection of the definition of “sex” under the ACA and RFRA. The Biden administration re-imposed rules that basically require employers to underwrite gender transition services; they had been in effect during Obama’s presidency but were vacated during Trump’s term. The Christian Employers Alliance filed suit in October 2021. The suit alleges that the employers have to provide coverage for gender transition procedures or suffer fines and civil liability under the ACA (along with much more as detailed in the post). But, they argued, all of that is because they are being forced to violate their religious beliefs. The EEOC and HHS argued in favor of the rule – what they said is in the post. IN granting an injunction on May 16, 2022, the judge said that the rule is not the least restrictive means to accomplish the government’s interest. More on the analysis is in the post.

TAKEAWAY: It is often more difficult to get a court to enter a preliminary injunction than to win the underlying case due to the high burden on the plaintiff, but it is not a guaranty of the final case outcome. Keep an eye or ear out on this issue.

doj settles with it recruiter to resolve immigration-related discrimination claims

The post on Tuesday 6/21/2022 told us that DOJ settled with IT recruiter to resolve immigration-related discrimination claims. Amtex Systems, Inc is an IT staffing and recruiting company based in New York. A US citizen filed an EEOC charge; after investiga-tion, DOJ concluded that Amtex used a company in India to identify and screen job applicants based on client preferences for workers with particular citizenship or immi-gration statuses. How did the recruiters make the preferences known? See the post. Those actions harmed US workers because they either did not apply or were not considered when they did. One example of the effect is noted in the post. And what else did the company‘s recruiters do that harmed non-US citizen applicants? See the post. The Immigration and Naturalization Act (“INA”) was implicated here. You don’t often see this come up, but know that it’s out there and valid. What INA does is noted in the post, along with potential liability for violations. Amtex agreed to settle the claims against it on both monetary and non-monetary grounds as noted in the post.

TAKEAWAY: Don’t think that US boundaries are also the boundaries for various federal laws; some are broader or have a larger reach. Know the law.

condo/hoa Questions: is association treasurer required to be a board member?

The post on Wednesday 6/22/2022 talked of condo/HOA questions: Is an association treasurer required to be a board member?  The answer depends on both applicable state law as well as the Association’s Declaration, Bylaws and/or Rules and Regulations. Treasurers have a variety of duties that are crucial to an Association’s operation (as noted in the post) and so it is important to know if and how that person must be vested in the commu-nity’s interest. Some associations require all officers to be Board members, while others do not. Further, some require Board members to be owners, while others do not. An example is in the post.

TAKEAWAY: Know how PA law and your Association’s Governing Documents deal with Board members and officers. Consult a community association lawyer to be sure.

man threatened with $$ hundreds in hoa fines for bumper sticker

The post on Thursday 6/23/2022 told us a man was threatened with $$$ hundreds in HOA fines for bumper sticker. How could one little bumper sticker cause an uproar, you ask? Well … Chris, a veteran, drives a red truck that he used to park in his driveway. The truck had political flags attached. But the HOA required that they be removed. How and why is in the post. So then Chris put a bumper sticker on his truck that says “Let’s Go Brandon”; it sat alongside others including “F*** liberals, f*** your feelings” and more as noted in the post. The HOA is now telling Chris that he must remove the Brandon bumper sticker. What that is based on is in the post. And they will fine him if he does not comply. So what does Chris do to avoid the fines? See the post.

TAKEAWAY: Does your association have a policy on political signs? Would it cover this situation? Do you have a good community association lawyer to advise you or the Board on various legal issues?

amazon accused of discrimination against pregnant and disabled workers – again

The post on Friday 6/24/2022 told us Amazon was accused of discrimination against pregnant and disabled workers – again. This happened in NY where the state filed a complaint alleging that Amazon allegedly forced pregnant workers and those with disabilities to take unpaid leaves of absence instead of providing reasonable accommodations. Several examples of the alleged violation were given and one is noted in the post (including how Amazon’s action affected the employee). And why is Amazon in this pickle? Because it (alleg-edly) allows its managers to override recommendations by other employees whose job is to evaluate and recommend accommodations. And yes, this wasn’t the first time Amazon is in the crosshairs for its treatment of pregnant workers. The post tells the history as well as congressional involvement.

TAKEAWAY: Employers of all sizes must abide by federal (and applicable state) laws; violations can be costly in both financial terms and the court of public opinion where customers vote with their pocketbooks.

court rejects claim of “hyper-scrutiny” as evidence of discrimination

Finally, in the post yesterday 6/25/2022 we saw court rejects claim of “hyper-scrutiny” as evidence of discrimination. Let’s look at the facts. Midland Brewing’s former restaurant operations manager, Boshaw, claimed he was terminated because of his “sexuality” in violation of Title VII and state law. After a comment by the restaurant manager (which is noted in the post), he complained to the owner, including retaliation (the basis of which is also in the post). The company’s reasons for terminating Boshaw are in the post. Then, in keeping with the legal burden-shifting scheme, Boshaw alleged that he was subjected to “hyper-scrutiny” which showed that Midland’s reasons were pretextual. The trial court dismissed the case and Boshaw appealed. The appellate court upheld the dismissal and analyzed the facts Boshaw pointed to in support of his “hyper-scrutiny” argument; examples are in the post.

TAKEAWAY:  Document document document – but treat comparable employees the same or documentation won’t get you to the finish line.