Discrimination and Unlawful Harassment

6 keys to having your age discrimination release hold up in court

September 26, 2013 | by Eric B. Meyer

You’re about to have a reduction in force and you’re going to offer a severance package to those effected: one week of salary for every year of service in exchange of a full release of all claims. If one or more employees affected by the reduction in force is 40 years of age or older, you’d better make sure that your release language complies with the the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection Act (“OWBPA”). Unlike other general releases, by statute, an ADEA/OWBPA release must have certain required elements for it to be effective.

One employer, in this recent case, learned the hard way. The employer RIFed the plaintiffs, but failed to inform them “about the group of employees who were being terminated as a result of the reorganization or about employees who were not selected for termination,” as the law requires. Consequently, the age discrimination release that the plaintiff signed wasn’t worth the paper it was printed on.

Kinda like this blog.

Employee asks court to stop company from making her work Saturdays

September 25, 2013 | by Eric B. Meyer

Sounds like someone’s taken a page out of the Lionel Hutz playbook.

Patrice Williams is a Seventh-Day Adventist. Seventh-Day Adventists believe that the Sabbath runs from sundown Friday to sundown Saturday. Because of her sincerely-held religious beliefs, Ms. Williams requested that her employer not require her to work during the Sabbath, to which the employer allowed her to do so through a combination of swapping shifts with co-workers, using vacations days, using sick days, scheduling doctors appointments, and other means.

//www.youtube.com/watch?v=vVPG-jnehr0But, that wasn’t good enough for Ms. Williams.

Court ok’s firing EAP employee upset with company’s workplace investigation

September 24, 2013 | by Eric B. Meyer

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker’s complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters’ statements to Carilion’s human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe’s sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe’s complaint to Carilion’s human relations department. Merely ferrying Doe’s allegations to Carilion’s human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing…. DeMasters intended only to relay Doe’s complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.

Does the ADA mandate transfer preferences for disabled employees?

September 23, 2013 | by Eric B. Meyer

Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association – New Jersey Annual Conference.

I must admit that I was a bit leery. While it sounded legitimate enough — they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities Act — being the guy with The Employer Handbook blog, I half expected to be chloroformed upon arrival, and buried under a jughandle, left to be constantly trampled by folks making left turns from the right lane.

But, instead, I spoke to a sharp, engaged audience and met some wonderful people. (NJ management-side lawyers: there’s a reason we get paid the big bucks. These employee-side folks don’t make it easy!)

How ordering cheesesteaks can help employers with disability-accommodation requests

September 17, 2013 | by Eric B. Meyer

In Philadelphia, we’re known for certain things, such as cheesesteaks. Ordering the cheesesteak is a bit of an art form. For example, I could order a “Cheese steak, with Cheez Whiz and fried onions.”

Or, I could simply say, “Cheese wit.” As most anyone around her knows that Cheez Whiz is the default “cheese” and “wit” means “with fried onions.

[Those of you who are giving me that disdainful Cheez Whiz stink face through your computer — right back at ya, when you order the “Philly Cheesesteak” on your local dinner menu. For there is nothing “Philly” or “Cheesesteak” about that sludge, right down to the Swiss cheese and mayo. Ya heathen!]

Body shots + booty shorts + live office sex = no sexual harassment

September 13, 2013 | by Eric B. Meyer

Sounds like one crazy party. Or just another Thursday at the Pine Woods Apartments.

Kristen Glemser had no idea…

On December 7, 2006, Kristen Glemser, a marketing/leasing agent for Pine Woods showed up for work, just like she would any other day. Except that some of the ladies in the office had planned a small party of one of Ms. Glemser’s female co-workers.

EEOC Commissioner Feldblum provides answers on obesity as an ADA disability

September 12, 2013 | by Eric B. Meyer

About two years ago, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese. The EEOC alleged that the employee’s immense weight interfered with his ability to walk, stand, kneel, stoop, lift and breathe. Consequently, he was disabled, as defined under the ADA.

Since then, at least one court has recognized that morbid obesity may be a disability, while another court held that, under state law, morbid obesity is not a disability. It was right around this time that the American Medical Association adopted a new policy that officially labels obesity — not morbid obesity, but obesity — as a disease.

So how does employee obesity impact employers under the ADA?

Waitress suspended for posting racist customer receipt on Facebook

September 11, 2013 | by Eric B. Meyer

It’s a story that first made news over the weekend and is quickly picking up steam, ironically, because of social media.

A customer at a Tennessee Red Lobster restaurant allegedly left a racist message on a receipt. An African American waitress subsequently posted the receipt to Facebook with the message:

“This is what I got as a tip last night…so happy to live in the proud southern states..God Bless America, land of the free and home of the low class racists of Tennessee”

A supervisor’s swine flu death wish on an older employee leads to an age bias claim

September 10, 2013 | by Eric B. Meyer

Yesterday, our guest blogger offered three tips for successful onboarding.

Unable to match that, today, I have a less than successful way to encourage attrition — unless of course you like defending age discrimination claims.

A federal court has permitted a plaintiff’s claims that his ex-employer created a age-based hostile work environment to proceed to trial. And, get a load of the supervisor stupidity:

Under the ADA, even a 15-minute task may be an essential job function

September 6, 2013 | by Eric B. Meyer

15 circle Kolja Vraniskoska worked as an Environmental Services Technician for Franciscan Communities, Inc., a nursing home. Ms. Vran– (eh, let’s go with Ms. V) — had several responsibilities as an ES Tech, one of which was pushing and unloading a linen cart. Franciscan required that each ES Tech take a linen cart stocked with fresh linens and transport it from the laundry to their unit by pushing or pulling it down the hall. During the day, the linen cart remained stationary as the ES Tech took fresh linens from the cart. At the end of the day, the ES Tech had to push the linen cart back to the laundry. Transporting the linen cart took approximately fifteen minutes each day.

Ms. V gets hurt

During the course of her employment, Ms. V suffered a wrist injury. Initially, during recovery, her doctor advised that Ms. V should not use her left hand at all. So, Franciscan allowed Ms. V to perform light duty. Eventually, Ms. V’s wrist improved to the point where should could lift up to five pounds. But, her condition never improved. So, Franciscan, which had a policy of providing temporary light duty during recovery, told Ms. V that she had 45 days in which to find another suitable position within the company, or be fired.