Articles Posted in Retaliation

What the hell are you talking about, Eric? Why would we make an independent contractor sign a release of employment claims before starting work for our company?

So glad you asked. Although, I’m not sure I like your tone.

*** takes pills ***

Many years ago, Allstate Insurance restructured its business, where it decided to longer have employees; only independent contractors. So, it offered its employees a bunch of options. One option was a severance; another was the ability to convert to independent contractor status. Either way, the individual had to release all past and presented employment-related claims agains the company.

When the EEOC got wind of the conversion option, they cried retaliation.

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Fact or Fiction?That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Oh, if I had a nickel for every time I got this question from an employer, “Hey Eric. We have this pregnant employee and she is very close to term. We’re concerned that if she continues working all the way up to childbirth, she may harm herself or the fetus. Can we require her to stay home?”

Eek! Check out this recent press release from the EEOC in which the agency announced that it is suing an employer, which allegedly required a pregnant employee to take unpaid leave until she was cleared by a doctor indicating that she could work despite her pregnancy. The EEOC further alleges, when the employee failed to provide a release, and after she and her mother disputed the legality of the requirement, the employee was fired in retaliation.

So, under federal anti-discrimination law, the answer to today’s QATQQ is, generally, fiction.

NoteA United States Supreme Court majority opinion predicted that Title VII, which contains the Pregnancy Discrimination Act, would preempt state law, thereby absolving employers that complied with Title VII from liability for any fetal injury. (Although the concurrence was more skeptical). Further, that same case recognized a narrow safety exception that would allow an employer to remove a pregnant employee from the workplace; namely, in instances in which pregnancy actually interferes with the employee’s ability to perform the job.

//www.youtube.com/watch?v=R0IUR4gkPIE

About a year ago, I blogged here about a dreadful Sixth Circuit opinion, in which the court concluded that the plaintiff may have a discrimination claim for receiving the specific transfer he requested (after having interviewed for the position).

Now, if you read the comments on my post, you’ll see that some of my readers took issue with my analysis of the case.

Well, I see your comments and raise you a scathing Justice Alito dissent from the United States Supreme Court’s denial of certiorari:

The decision of the Sixth Circuit in this case–holding that respondent suffered an adverse employment action when his employer transferred him to a position for which he had applied–qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is warranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undisturbed, will stand as a binding precedent within the Sixth Circuit….The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based.

#TeamAlito

Or, at least, when you honestly believe that one of your employees is masturbating in the parking lot.

(Unless, of course, you’re like by buddy Fred, who operates Parking Lot Self-Gratification, LLC).

Let’s just pretend that parenthetical remained in my head, ok?

After the jump, it’s a lesson on the law of retaliation involving the case of a school district employee who was fired for allegedly masturbating in a car…in the school parking lot…during school hours. And he claimed that his firing was retaliatory in violation of Title VII of the Civil Rights Act of 1964. 

Allow that to sink in for a sec, then hit jump while I kiss the head of my golden blogging statuette and rub her belly…

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Earlier this year, the EEOC filed a federal lawsuit against CVS in which it claimed that drugstore chain “conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.” Specifically, the EEOC took issue with several common provisions that you guys probably use in your severance agreements:

  • a general release;
  • a non-disparagement obligation;
  • a confidentiality provision;
  • a covenant not to sue; or
  • a cooperation clause

But don’t go throwing your severance agreements in the trash just yet.

More after the jump…

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See how a federal appellate court shut out a plaintiff’s claims of retaliation after she was fired for forwarding confidential documents to herself, purportedly to preserve evidence for an age-discrimination lawsuit filed by a former coworker.

What I did there, you see that?

After the jump…

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Thumbnail image for eeoclogo.pngJust in case you thought that the United States Equal Employment Opportunity Commission uses a soft touch towards any business that may discriminate — let alone a charity.

Earlier this week, the EEOC announced here that Goodwill Industries will pay $100,000 to settle a long-standing retaliation lawsuit.

In its lawsuit, the EEOC charged that Goodwill retaliated against a worker by firing her after she testified on behalf of another Goodwill employee in a previous federal sex and age discrimination lawsuit.

Ladies and Gentlemen: This EEOC does not mess around!

teeth.pngJust a reminder that some managers still engage in really stupid behavior.

I was reading this case about an HR Manager of a dentistry practice.

Following an interview between a dentist in her practice and an African-American woman, the dentist allegedly commented to the HR Manager that the person would not be hired, as there were already too many blacks in Lewisville. The HR Manager then supposedly responded that “race is irrelevant.” 

And, after the HR Manager told another member of management what had transpired, the manager stated that there were too many blacks in Lewisville and that they were ugly.

Shortly thereafter, the company sacked the HR Manager, to which she responded that her termination was retaliatory; i.e., for complaining about her former employer’s discriminatory actions.

In defending the lawsuit, the defendants first contended that the plaintiff had failed to establish that she had complained about discrimination.

Since, all that is required to demonstrate a complaint about discrimination is an understanding that the plaintiff is protesting discriminatory conduct, the plaintiff responded to the defendants’ argument, “Like, duh.” that her discussion with management was to advise the company of the wrongness of the hiring dentist’s conduct and cause him to change his course of action.

Not surprisingly, the court accepted this argument.

Like, duh.

Undeterred, the defendants argued that the plaintiff could not connect her comment to her termination. The plaintiff responded that the proximity in time between her comment and her termination would suffice. Further, she argued that the defendants’ reasons for firing her were pretextual, especially in light of Defendants’ chief financial officer’s statement that the plaintiff had been terminated because “she hired too many blacks.”

Good gawd!

The defendants argued that it had a number of non-discriminatory performance-related reasons for terminating the plaintiff’s employment, and those may be true. However, allegations of racist statements attributed to multiple members of management is also a very good reason to settle a case.

And increase the sensitivity training budget.

(But then again, if the allegations in this particular case are true, I don’t know that any amount of training would fix such a systemic problem of prejudice).

Thumbnail image for Thumbnail image for EEOC.jpgWhen your business offers a severance agreement to a departing employee, does it contain:

  • a general release;
  • a non-disparagement obligation;
  • a confidentiality provision;
  • a covenant not to sue; or
  • a cooperation clause

Well, if it contains any one (or more) of these provisions, head over to Jon Hyman’s Ohio Employer’s Law Blog right away to learn about a new lawsuit that the EEOC has filed in which it alleges that each of these common severance-agreement provisions amounts to retaliation.

If the EEOC prevails here and in subsequent similar actions in other jurisdictions, the effects would be game-changing.

So, definitely go to Jon’s blog for more information.