Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.
(Y’all have families, right?)
For serious, today’s lede isn’t just gratuitous, there is an employment-law connection here.
Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff’s burden of proof is for a Title VII retaliation claim.
Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?
Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?
Today we have a guest blogger at The Employer Handbook. It’s Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs
(Want to guest blog at The Employer Handbook? Email me).
* * *
This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.
The EEOC celebrated “Equal Pay Day” last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.
In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan’s salary to replace him was $55,000.
From the blog that brought you the classy September 2011 post, “This old mother****** may just have an age discrimination claim,” comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as “Old Rose.”
On other occasions, the plaintiff Rosemary Marsh was told, “you’re slipping, you’re getting old.” Another time, she was asked if she was “too old to get down there” when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh — you had to figure that was coming, right? — she was allegedly told, “I think you’re just getting a little too old for your job.”
Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma’am:
To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did “X.” And, as long as “X” isn’t discriminatory, the employer prevails. This is the honest belief doctrine.
So, can an employee flip the “honest belief doctrine” on its head to show that an employer’s purported legitimate business reason for disciplining an employee was actually pretext for discrimination?
Find out after the jump…
* * *
You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren’t often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.
One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on “managing.”
Assuming that no other reasonable accommodation exists, must you give it to him?
Many states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT).
But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.
What Title VII does make unlawful, however, is stereotyping based on a person’s gender non-conforming behavior (i.e., a man who appears effeminate, or a “manly” woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:
– “Mr. Dorfman?”
– “Hello!”
– “0.2… Fat, drunk and stupid is no way to go through life, son.”
* * *
– “That’s Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He’s been blowing stuff up ever since.”
* * *
Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:
- If Flounder were Dean Wormer’s employee (rather than just a student at Faber College), would Wormer’s calling him “stupid” mean that Faber regarded Flounder as “disabled” under the Americans with Disabilities Act?
- Since Left Ear is deaf in one ear, would he qualify as “disabled” under the ADA should he return from his Spanish villa and seek gainful employment in the USA?
Tough questions. But here, at the ole Handbook, when the going gets tough…[wait for it]…The tough get goin’! Who’s with me?
Let’s do it!!!! (after the jump…)
* * *
Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?
We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.
After the jump, I’ll address the big question: when is enough enough?
* * *
The Employer Handbook Blog