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.
In the post on Sunday 2/20/2022 we asked: Will the NFL be sued for race discrimination against Black coaches? As of January 31, 2022, it hadn’t happened yet, but who can predict the future? There is no question but that Black head coaches are underrepresented in the NFL. If this were a Fortune 500 company, would it be treated differently? See the post. Years ago, in the early 2000s, a threatened lawsuit gave way to an organization that advocates for more Black head coaches and executives – see the post for more details. Have you heard of the “Rooney Rule”? It came out of that. But given the statistics noted in the post, would a suit be warranted? The elements the plaintiff would have to prove under Title VII or Section 1981 are laid out in the post. Then the NFL team gets to show/explain its non-discriminatory reason for not hiring the person. Then the burden shifts back to the plaintiff to show that the explanation provided is pretext and that the real reason is discrimination. Some examples of how that would play out are in the post. Statistics might also come into play; the post discussed how they might be used.
TAKEAWAY: Just because something is legally discriminatory does not mean that the victim will bring suit; there might be good reasons not to in some circumstances (as noted in the post).
The post on Monday 2/21/2022 taught that if you are considering an early retirement program, make sure you plan ahead! Not necessarily you, but a program for your business where employees must retire at a certain age. Yep, you are absolutely correct if you said “uh-oh, what about the ADEA?”. But there could be a voluntary early retirement incentive program (ERIP) if done right. Why would you want to implement this? Cost-cutting (yes, usually older employees have been there longer and while they have more experience, they are also more highly-paid) and turnover and more as noted in the post. So what types of things must you consider relative to an ERIP? Your ultimate staffing goal after the ERIP and the other things listed in the post. There is even EEOC Guidance on this subject and a link to it in the post. Things to think about before implementation are who will be eligible for the ERIP, what if not enough employees opt in, and the other things in the post. Tread carefully but do consider treading.
TAKEAWAY: Sometimes an ERIP might be just what your business needs, so discuss it with an employment lawyer.
The post on Tuesday 2/22/2022 showed us that Wellpath is to pay $75,000 to settle EEOC religious discrimination case. The employer here is a provider of health care services in correctional facilities. According to the EEOC’s suit, a nurse who is an Apostolic Pentecostal Christian was hired to work in one facility in Texas. Before reporting, she told an HR employee that her religious beliefs gave her certain limitations as noted in the post. Wellpath then denied her request for accommodation and rescinded the job offer. Why there is a question of the reasonableness of the requested accommodation is noted in the post. After conciliation failed, the EEOC filed suit. Now it has settled. Wellpath will pay $75,000 and provide the non-monetary relief noted in the post (which is sometimes just as important).
TAKEAWAY: Know your rights and obligations under the ADA – consult an employment lawyer to keep you on the right side of legal.
The post on Wednesday 2/23/2022 was about a VIDEO: woman with “terrifying” neighbor sues condo board, alleging it failed to stop the harassment. So let’s talk about the neighbor – who has been arrested several times for violating a temporary retraining order and criminal property damage. And she keeps coming back for more. So the neighbor sued the Association for failure to act to stop the harassment. Watch the video for details. Just some of what she did was chop down landscaping on the suing neighbor’s property, go to jail for that, post bail, and come back and start right up again. More details are in the post – and tell you that this has gone on for quite a long time. So has the association done anything? Yes; see the post. NOTE: this author questions whether the association would have any liability under the FHA but more facts are needed.
TAKEAWAY: What would your association do in this situation? Discuss it with the Board and a community association lawyer BEFORE you actually need the answer.
In the post on Thursday 2/24/2022, we saw a property manager bilked condo association out of $46,500 to go to casino. While this happened in Rhode Island, it could happen anywhere. The manager, who was also a town official, took the money to cover personal expenses and gambling at a nearby casino. How did she plead? See the post. She made 4 trips to the casino within a few months; how she got the funds is also noted in the post.
TAKEAWAY: Make sure your association has the right checks and balances in place. Work with a community association lawyer.
The post on Friday 2/25/2022 told us an employee alleges discrimination over accent. Miladis Barnes worked for the Miami-Dade County Public Schools since 2017. Her current position is as a janitor but due to staffing shortages she has covered many other positions as listed in the post. Barnes had previously filled in at a position that opened up on January 20 and applied. But she didn’t get it. The complaint filed by the EEOC alleges that a principal at the school where Barnes is based said, in a recorded conversation, that they wanted someone who spoke English. She told them she did speak English. And what was the response? See the post. Devastating – and possibly (probably?) illegal.
TAKEAWAY: Don’t take adverse action against an applicant or employee based on a protected characteristic – and definitely don’t record it. Get an employment lawyer involved early.
Finally, in the post yesterday 2/26/2022, we learned about Guidelines for evaluating claims (or requests) for religious exemptions from vaccine mandates. Yes OSHA withdrew its ETC (see our post from 2/16/2022), but many employers still have mandatory COVID vaccination in place. That means that there will be requests for exemption on religious grounds. Title VII requires reasonable accommodation, but what that means is not always clear. Things an employer should do include clarifying the issue, i.e. which work requirement conflicts with the religious belief for the reason noted in the post, evaluating the sincerity of the religious belief (by the methods noted in the post), and two more things as discussed in the post. Have a checklist for the steps to be followed and follow them.
TAKEAWAY: The number of requests for exemption from vaccine mandates for religious reasons is increasing so employers must know the process to follow after receiving such a request. Consult an employment lawyer.
York, Pennsylvania 17403