Discrimination and Unlawful Harassment

EEOC clarifies ADEA “reasonable factors other than age” defense

March 30, 2012 | by Eric B. Meyer

Thumbnail image for eeoclogo.png Yesterday, the U.S. Equal Employment Opportunity Commission (EEOC) issued its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).

Wait, wha, wha, what the heck is an RFOA? (The Cliff Notes versions because, like, you could click on the link above, dudes.)

Can you tell it’s been a long day as I punch out this post? Anyhoo, make with the jump, dawg…

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Distinguishing state & federal disability-accommodation claims

March 20, 2012 | by Eric B. Meyer

Let’s say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers — depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump…

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4 new employment-law bills now pending in Congress

March 19, 2012 | by Eric B. Meyer

Below are summaries of four pieces of legislation of which employers should take note:

Protecting Older Workers Against Discrimination Act. Senator Tom Harkin (IA-D) introduced this bill last week. It would overturn the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc. and lower the burden of proof for employees to prove age discrimination claims.

National Right to Work Act. Senator Jim DeMint (SC-R) has introduced this bill to “preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.”

Flyer claims Chick-Fil-A asks potential hires about sexual history

March 13, 2012 | by Eric B. Meyer

Over the weekend, I read this story by Laura Hibbard at the Huffington Post about a phony job flyer handed out by two men in red blazers posing as Chick-Fil-A employees [link to video] on the campus of New York University. The phony flyer states:

Remember Chick-Fil-A is a Christian company. We strive to have our values reflected in our employees. Please be prepared to discuss your religion, family history, personal relationships etc. upon interviewing. Chick-Fil-A reserves the right to question, in detail, your sexual relationship history. The Bible and Chick-Fil-A, define a traditional relationship as consisting of a man and woman. Anyone living a life of sin need not apply. The Chick-Fil-A Foundation. God, Family, Tradition.

The flyer and video have since gone viral. However, Chick-Fil-A, which has a stated corporate purpose to “glorify God by being a faithful steward of all that is entrusted to us,” responded by posting on the wall of its Facebook Fan page (incidentally, 4,960,921 people “like” Chick-fil-A) that the flyer and video were BS. Given the company’s religious leanings, the comments beneath Chick-Fil-A’s status update are rather polarizing.

More on obesity and ADA discrimination

March 9, 2012 | by Eric B. Meyer

Back in December, I wrote here about a federal court in Louisiana recognizing that a morbidly-obese plaintiff may have a physical impairment which, if it substantially limits one or more major life activities, would bring that plaintiff within the scope of the ADA (the pre-ADAAA version).

As an update to that post, last week, the same Louisiana federal court granted summary judgment, in part, to the EEOC, who was asserting the claim on behalf of the employee. Specifically, the court ruled that the EEOC had affirmatively established that the employee, who was morbidly obese, had a “disability” within the meaning of the ADA.

Disclaimer: I serve as an EEOC mediator.

What’s cookin’ in celeb chef Paula Deen’s kitchen? Discrimination?

March 8, 2012 | by Eric B. Meyer

Allegedly, of course.

Can one anti-Semitic email make a tenable employee bias claim?

March 6, 2012 | by Eric B. Meyer

When an employee sues his former employer alleging a religiously hostile work environment, he must prove, among other things, that he was subjected to harassment based on his religion and that the harassment was either severe or pervasive.

What do you think? Is the email below from a company General Manager severe enough for ya?

Can I just say something I shouldn’t to you here — he is SUCH A JEW! In a BAD way. He’s what gives Jews a bad name. He’s smarter. He’s better. He’s owed. He will do anything to keep from opening his wallet — right down to not eating!!!! And I am DEAD serious here!!! That’s why he expenses every single thing he can because he won’t pay anything! I have not seen him bring one single thing into this office in all the time he’s been here — period. (that he paid for) IF he does bring something in he expenses it. . .I COULDN’T say to him what I just did to you — that HE is what gives Jews a bad name!!!

Let’s see what a NJ court said, after the jump…

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USERRA + ADAAA = 11 letters and many more HR issues

March 1, 2012 | by Eric B. Meyer

Thumbnail image for eeoclogo.png Quick quiz:

What protections does the ADA provide to veterans with disabilities?

When is a veteran with a service-connected disability protected by the ADA?

But, you see judge, it was only “exotic dancer” harassment…

February 27, 2012 | by Eric B. Meyer

I’ve come up with some pretty creative defenses to unlawful harassment. Usually, however, before I file a pleading, I take out my trusty ~~red pen~~ iPad and delete those arguments that are just so outrageous that I feel my client will lose credibility with the court.

But that’s just me.

After the jump, I have a recent federal-court decision in which a Maryland grocery claimed that the [alleged] relentless sexual harassment of a female employee by the store’s male manager wasn’t “sexual harassment” — that would be illegal. Rather, it was “exotic dancer” harassment.

That’s pretty creative, alright.

Oh boy…

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The ADA does not force employers to provide indefinite leave

February 22, 2012 | by Eric B. Meyer

Hey, that blog title looks familiar. Oh yeah! I wrote about it here back in October.

This time around, another federal court, the Tenth Circuit Court of Appeals, has reaffirmed that while a “leave of absence may be a reasonable accommodation [under the Americans with Disabilities Act]”, the employee must provide a reasonable estimate of the amount work that will be missed. “Conversely, when the employee seeks leave, but it is uncertain if or when he will be able to return to work, a leave of absence is not a reasonable accommodation.”