Tires & beer, gift cards, ESAs at home and in the workplace, profanity, and more in Our Social Media Posts This Week – Jan. 26 – Feb. 1, 2020.

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 1/26/20, we saw a court ruling on age discrimination cases vs. Dobbs, Anheuser-Busch. Interesting. In PA, suits are normally brought where the defendant employer is located. Here, suits were brought against Dobbs Tire and Anheuser-Busch. As to Dobbs, Dwight worked there for 28 years. For 13 of those years, he was at one location, and then was transferred to a different location. He alleged that the transfer was due to distorted numbers from the first store. What happened after that is in the post. After suit was filed, Dobbs filed for dismissal since Dwight lived in IL and not MO. How the trial and appellate courts ruled is in the post. After that ruing, the case against Anheuser-Busch was sent back. There, John worked for the company since 1983 and alleged that discrimination against him began in 2012. His allegations are noted in the post. His facts put his case in a different posture than the Dobbs case – see the post for that and how the court ruled.

            TAKEAWAY: where a case is filed is the first gateway to the court – to ensure the venue is proper, consult employment counsel.

The post on Monday 1/27/20 asked if gift cards should be ADA compliant for the blind? Courts aren’t sure. And there are many lawsuits asking them to rule. This stems from Title III of the ADA which prohibits any “public accommodation” from denying “full and equal enjoyment” of its services or facilities on the basis of disability. The question is whether the gift cards are public accommodations. Court rulings have gone in different directions – see the post. And given that gift cards are the most widely desired present and, arguably, the most economically efficient one, that the visually impaired have trouble giving them (and also receiving them) means they’re being shut out from the system into which gift-giving is evolving. So, what will happen with these suits? Stay tuned.

TAKEAWAY: The ADA protects the disabled in certain areas and under certain circumstances many things that did not exist, or were not as mainstream, at the time of its enactment are now being looked at as to whether or not they are covered. This is just one.

The post on Tuesday 1/28/20 reminded you to know the law regarding ESAs (if you don’t even know that, emotional support animals) and community associations. Why? Because it could literally be costly if you don’t. Here, an association had to pay $50K (and more – see the post) because it didn’t allow a resident to have an ESA as a reasonable accommodation under the FHA. The resident submitted a letter to the Association board from a licensed psychologist – its contents are noted in the post.  That was to comply with the policy earlier adopted by the Association (which is described in the post). The various twists and turns the matter took, in and out of court, is noted in the post.

TAKEAWAY:  Federal (and possibly state) law supersede an Association’s rules and restrictions – know what must be done and how. Consult a community association lawyer.

The post on Wednesday 1/29/20 told us that a peacock walks into the office… No, this was not the start of a bad joke. Rather, it is more about emotional support animals and whether they can be in the workplace. First, ESAs should be distinguished from service animals under the ADA (which are limited as noted in the post). However, what qualifies as an ESA, and for what purpose, is much broader. See the post. Don’t just immediately say either yes or no when confronted with a request for an ESA in the workplace.

            TAKEAWAY: Know what is and is not required and the process to get to an answer – consult employment counsel to be sure.

In the post on Thursday 1/30/20 we read about Intel’s CFO’s statement on pay discrimination settlement: “Does it really matter” and suggested that it makes one question if the commitment to diversity and equal pay is sincere or solely for marketing purposes. His full quote started out: “We’re a $250 billion company. There’s $5-million decisions made, like every 27 seconds,” and ended as noted in the post. And that from a leader of a company that, as the post notes, is still mostly male, white and Asian. Just last year Intel settled the suit alleging discrimination against the group noted in the post, and yet the settlement barely made waves anywhere – and wasn’t even really touted among its own employees. Strange considering those in whose favor the settlement was reached are twice as likely to be among Intel’s lowest-paid employees as its highest-paid employees (and other interesting statistics noted in the post).

TAKEAWAY: If an employer is discriminating and settled allegations about it, come clean both internally and externally – use it as a learning and marketing tool with the help of employment counsel.

The post on Friday 1/31/20 was about the profane, racist, and sexist – NLRB expected to rewrite rules. In September, the NLRB requested public comment on whether it should overrule or modify its holdings in three cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (“NLRA”). What employers must consider now in this type of situation is noted in the post, but the change being considered will harmonize the NLRA with other laws, such as Title VII of the Civil Rights Act (whose requirements are also noted in the post). In the first case considered by the NLRB, Plaza Auto Center, an employee lashed out at his supervisor with expletives, called the supervisor a “f*****g crook,” told the supervisor he was stupid, and told the supervisor he would regret it if he terminated his employment. The other 2 cases are described in the post. In all three cases the employers asserted violations of company policy; however, the NLRB found that the employees engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”, such that the employees were wrongfully discharged.

            TAKEAWAY: The NLRB hasn’t changed its stance yet, but it might; keep your employment lawyer close to ensure you stay of the right side of the law.

Finally, in the post yesterday 2/1/20, we saw that LifeCare will pay $170,000 to a woman who was put on unpaid involuntary leave during pregnancy (and more in the post). LifeCare’s policy at the time was that it only provided light duty to employees injured on the job, not pregnant employees. What LifeCare told the woman, and what she thought it meant, are in the post. The EEOC sued and now is settling.

TAKEAWAY: Treat pregnant employees the same as you treat all other employees (unless an applicable law requires different treatment).

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