Articles Posted in Discrimination and Unlawful Harassment

Noting “Health Reasons” on a termination form could indicate disability bias

April 6, 2015 | by Eric B. Meyer

Happy Monday, everyone.

Glad to see I didn’t break some of your content filters on Friday with my filthy NLRB post. But, hey, just another day in the interesting life of an employment lawyer / HR professional, amirite?

Today, I bring you a very simple lesson, courtesy of the Third Circuit Court of Appeals, from right here in my backyard. That lesson is this:

When you terminate an employee, do not write “Health Reasons” on the employee’s termination form. Continue reading

Pilot who ranted and raved mid-flight about a terrorist attack blames airline for allowing him to fly

March 31, 2015 | by Eric B. Meyer

One week ago today, a Germanwings plane carrying 150 people crashed and killed everyone on board. Since then, there is mounting evidence that the co-pilot, who was in great physical shape, was also suffering from mental illness which caused him to deliberately steer Flight 9525 into the French Alps.

Why didn’t Germanwings taken preventative steps? Apparently, the co-pilot hid his mental illness from his employer.

Three days after the Germanwings catastrophe, a former JetBlue airline pilot, who was locked out of the cockpit and had to be subdued by passengers, filed this lawsuit in federal court against his former employer. He claims that the airline was negligent because it knew or should have known that he was “physically and mentally unfit to fly.” Continue reading

Was the Ellen Pao gender bias trial a wakeup call or snooze for businesses?

March 30, 2015 | by Eric B. Meyer

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I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty. Then, I started on a brief tangent on Ellen Pao, the former partner of a Silicon Valley venture capital firm, who just lost a highly-publicized gender discrimination claim against said former employer.

And a few hundred words later, that brief tangent became its own blog post — this one. (If you want a wild lawsuit brought by an airline captain who claimed that his former employer was negligent by failing to predict that he’d have a manic in-flight episode, come back tomorrow). Continue reading

The Supreme Court kinda sorta clarifies pregnancy accommodation rules at work

March 26, 2015 | by Eric B. Meyer

But, I’ll do my best to sort it out for you.

Let’s assume that you have a pregnant employee who tells you that she has a lifting restriction. In the past, you have accommodated employees with disabilities who had similar lifting restrictions. You’ve also done the same for folks who got injured on the job and others who lost their Department of Transportation (DOT) certifications.

If you don’t provide the same accommodation to the pregnant employee, have you violated the Pregnancy Discrimination Act?

When does transferring an employee amount to discrimination?

March 18, 2015 | by Eric B. Meyer

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

Federal judge reincarnates atheist’s religious bias claims

March 17, 2015 | by Eric B. Meyer

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

The teacher who feared young kids lost her ADA claim, you guys

March 12, 2015 | by Eric B. Meyer

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

Can you smack your sexual harasser, complain, and still claim retaliation?

March 11, 2015 | by Eric B. Meyer

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.
Continue reading

Transgender employees and the so-called bathroom conundrum

March 10, 2015 | by Eric B. Meyer

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

1 slur + 1 knife to the testicles = 1 hostile work environment

March 9, 2015 | by Eric B. Meyer

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

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