Articles Posted in Discrimination and Unlawful Harassment

Well, I think we can all agree that, when an employee’s protected class motivates a company to transfer him to a less desirable position, it’s time to call the lawyers and break out the checkbook.

But, what makes a transfer position less desirable?

Yesterday, I was reading this Sixth Circuit opinion about a hospital employee, who was undoubtedly suffering from a “disability” under the Americans with Disabilities Act. However, for several years, despite what the court described as “significant cognitive and physical impairments,” this plaintiff performed well as a housekeeper. Eventually, however, the hospital transferred the plaintiff to a different housekeeping role, one which he had trouble performing. Indeed, it was his poor performance in this new position that led the hospital to terminate his employment. Continue reading

And the Czech judge scored my lede a 4.3. Well, the second she starts paying my legal bills, maybe, I’ll give a damn. Until then…

What was I talking about? Oh yes, religious discrimination.

Over the weekend, I read this PA federal court opinion about an atheist who claimed that his boss proselytized to him about religion, even forcing him to wear a badge, which bore the company’s mission statement: “This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord [sic]….”  The atheist claims that he covered up the mission statement with duct tape and, when he refused to remove the tape, the company fired him.

The Court, which initially put the kibosh on the plaintiff’s religious bias, reconsidered and allowed the plaintiff’s claims to survive a motion to dismiss. Continue reading

I’m a bit late to the party with this one. But, for those who haven’t read about it elsewhere. Voila!

The plaintiff originally taught at the high school, during which she informed her employer about her pedophobia, a debilitating fear of young children. Some time later, the plaintiff was transferred to the middle school, which was ok because she only feared elementary school kids, and not middle schoolers. The plaintiff taught middle school for six months, but, then she asked for a transfer back to the high school, saying that her talents were “underutilized” at the middle school and that another year there would be bad for her health. The school district informed the plaintiff that there were no openings, but would keep her request on file. Shortly thereafter, the plaintiff retired.

She then sued the school district for age discrimination, disability discrimination, hostile work environment, intentional infliction of emotional distress, and breach of contract. Continue reading

Not exactly a happy workplace trinity, but it’s what fuels The Employer Handbook. That and Jolt-Cola Bombs.

The plaintiff  in this case claimed that she was sexually harassed by her male supervisor for over a year. The court’s opinion details alleged comments and groping in vivid detail.  (No recap here. I plan to keep my post PG, damn it! Ok, PG-13. You happy, now?). Whenever the plaintiff supposedly complained, her employer did nothing about the harassment.

So, finally, she decked him one.

That got the employer to take notice. Indeed, it determined that the plaintiff had been sexually harassed and it fired her harasser. Then, the company also fired the plaintiff.
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On my speaking boondoggles around the country, what’s the biggest issue I hear from HR professionals involving transgender employees?

Yep, it’s the use of the bathroom.

Folks, it’s not that complicated. But, I’ll get to that in a sec. First, with a tip of the hat to Joshua Block (@JoshACLU), over the weekend, I read this tweet, which links to this story from Jessica Shepherd (@JessShepSaginaw), about a Planet Fitness location in Michigan that received a complaint from a female gym member. This woman complained to the gym about a transgender woman (assigned male at birth; identifies as female) in the woman’s locker room. She then told other gym members that “a man” was using the woman’s locker room.

So Planet Fitness responded. Continue reading

My new blogging platform and email newsletter have their advantages, especially the newsletter.

For example, when a daily post goes out to my blog email subscribers (and, if you haven’t subscribed yet, you can do that here), one of the analytics I can track is the most-clicked hyperlinks. Welp, in last week’s “Heil Hitler” post, the most popular links were the two that were marked NSFW. That means NOT SAFE FOR WORK. To put this into better perspective, there were three times as many clicks on the NSFW links as there were to the link to the Fifth Circuit opinion I address. Although my analytics don’t literally say it, I will: you guys are hella-twisted.

But, hella-twisted or not, you’re still the best readers on the planet.

Hey, maybe we can just blame those clicks on the plaintiffs’ lawyers who read this blog. (Don’t worry. I love you too. Just not nearly as much). But, I’ll tell you what. One of ‘em came through big time by forwarding me a copy of this opinion, which is a great juxtaposition *** Googles “juxtaposition” — nailed it! *** to what I wrote last week about how no reasonable person would construe a single “Heil Hitler” comment from a manager as creating a hostile work environment. Continue reading

“I see your ‘two free slurs’ rule, Fourth Circuit Court of Appeals, and I raise you one shout out to the Third Reich, alright Hoss?”

Ok, you got me.

The Fifth Circuit, which covers Louisiana, Mississippi, and Texas, didn’t actually use those words, exactly. But, what the Court did say in this opinion, was that an employee who complained to Human Resources about a Deputy Director, one who allegedly said “Heil Hitler,” could not reasonably believe that this single comment created a hostile work environment. Got that? When a manager allegedly praises the Nazis one time, that’s not against the law:

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I know what some of you are thinking, “Seems more like a Tuesday topic to me.” To you folks I say, “Get the hell out of here! YOU’RE NUTS!!!”

Ok, you’re right, let’s start over.

One of the exotic dancers at a Georgia gentlemen’s club got preggers. Wait. Do the kids still say preggers? Yeah, let’s try and be mature about the serious Monday post. A woman who gyrates on stage for dollars, and maybe on customers’ laps too — I don’t know for sure — got pregnant. Hey, look, I’m not judging.

Two months later, she lost her job.

The woman claimed that her employment was terminated due to her pregnancy in violation of Title VII. Continue reading

Yesterday, with my good buddies Casey Sipe and Jessica Miller-Merrell from Blogging4Jobs.com, I presented a webinar on the interplay between the Family and Medical Leave Act, state workers’ compensation laws, and the Americans with Disabilities Act. The key word in the last sentence being “interplay.”

(By the way, if you want to snag a copy of that webinar, drop me a line, and I’ll see what I can do about getting you a copy).

One point we emphasized during the webinar is that, for employees taking FMLA leave for their own serious health condition, companies need to have a plan to address the FMLA implications and the potential interplay — there’s that word again — with the ADA. Because, remember, leave may be a reasonable accommodation under the ADA. Continue reading

In a world, where an employee cannot prove age discrimination after getting fired for playing golf during his medical leave, comes the story of a pharmacist *** dramatic pause *** who wouldn’t give flu shots. While we wait for Hollywood to greenlight this movie — I’m thinking Gary Oldman as the pharmacist and Blossom‘s Jenna von Oy as the customer — you’ll just have to settle for a short blog post about the age discrimination lawsuit that ensued after the pharmacist was fired.

As detailed in this recent Pennsylvania federal court opinion, a drug store decided to require that its pharmacists immunize customers upon request. The plaintiff, a pharmacist, was morally opposed to administering the flu vaccine because a close friend of his had contracted Guillain-Barre Syndrome after receiving a flu vaccine. The drug store didn’t doubt the sincerity of the plaintiff’s beliefs. Nonetheless, it fired him because he refused to immunize customers, which was an essential part of his job. Continue reading