Allow me to be serious for a moment…
Moment’s passed, eh? Ok. Let me bring it back…
Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).
Here’s the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations — options to allow the employee to perform the essential functions of the position.
Ah yes! You recall that there is another vacant position for which the employee is qualified — albeit barely. That’s a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.
Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?
I’ll discuss after the jump…
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If the movie “Office Space” has taught me anything, it’s to wear 37 pieces of flair to work — do more than the bare minimum — and to use a cover sheet with my TPS reports.
And never mess with a man’s stapler. That too. Especially when you’re also moving the man’s desk four times and sending him to the basement. Because that could be age discrimination.
No, seriously. I was reading this decision from the United States District Court for the Eastern District of Pennsylvania. It involves claim of age discrimination where, the over-40 plaintiff claimed that he was “functionally replaced” by an employee who was substantially younger than him.
Consistent with its strategic plan to provide up-to-date guidance on the requirements of antidiscrimination laws, last week, the United States Equal Employment Opportunity Commission issued this press release in which it announced that it had revised guidance on how the Americans with Disabilities Act applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. You can find links to that revised guidance here.
And earlier in the month, the EEOC held a public meeting on employer wellness programs and how they may be impacted by not only the ADA, but also the Genetic Information Non-Discrimination Act (GINA). You can view a copy of the press release here. Suffice it to say that, until the EEOC offers further guidance on these issues — and even when it does — consult with an employment lawyer before implementing or updating one of these programs.
When offering respect in the workplace training for employees and supervisors, I emphasize that an employee who laughs at sex jokes in the workplace is the same employee who may later sue for sexual harassment.
Like Little Ladner did.
(Yes, Little Ladner)
More after the jump…
I’ve been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn’t sure whether what I was reading was a sexual harassment case or a porno script.
What can I say? I like the plots.
Folks, if you click through, I promise you a great read after the jump…
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What could go wrong when the boss’s son asks that question of, David, a nearly-40-year employee? Oh, right, David got laid off a week later.
Age discrimination? Well, let’s see…
We know that when an employer inquires about an employee’s retirement plans — without bringing up age — it should be able to avoid liability. But, repeated inquiries about a plaintiff’s intention to retire could suggest an age-related impetus for his eventual firing.
You’re thinking I should have led with the strip club, eh?
On Wednesday, an Iowa jury awarded $240,000,000 to a group of 32 men with intellectual disabilities, whom it found had been discriminated against in violation of the Americans with Disabilities Act. According to this EEOC press release, the verdict works out to $2 million in punitive damages and $5.5 million in compensatory damages for each plaintiff, and follows a September 2012 order from the district court judge awading the men $1.3 million for unlawful disability-based wage discrimination, thus making the total judgment $241.3 million.
And then there’s “THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE.” More First Amendment than employment law. But, nonetheless, right in my wheelhouse.
Robert Mariotti was the vice-president and secretary of the company his father founded. Not only was he a corporate officer, but Mariotti also served as a member of the board of directors, and was a shareholder who could only be fired for cause.
In 1995, Mariotti had a spiritual awakening, which he claims resulted in a resulted in “a systematic pattern of antagonism” toward him in the form of “negative, hostile and/or humiliating statements” about him and his religious affiliation. Mariotti claimed that this behavior ramped up for over a decade and, ultimately, resulted in his termination. Thereafter, he sued his former employer for religious discrimination. The company moved to dismiss the claim on the basis that a shareholder-director-officer is not an “employee” under Title VII of the Civil Rights Act of 1964 and, thus, has no standing to assert a claim for religious discrimination.
What happened you say? Well, even if you read the lede, click through for full analysis…
Discrimination is just plain wrong. It is shocking that there is still anywhere in America where it is legal to fire someone for their sexual orientation or gender identity. Americans understand that it’s time to make sure our LGBT friends and family are treated fairly and have the same opportunities as all Americans. Now it’s time for our laws to catch up. People should be judged at work on their ability to do the job, period.
— Senator Jeff Merkley (D-OR)
Last week, Senator Merkley together with Senators Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI), reintroduced the Employment Non-Discrimination Act (ENDA). (The same version of ENDA has bipartisan sponsorship in the House as well).
Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. ENDA, which has been introduced in every session of Congress save one since 1994, would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.
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