Discrimination and Unlawful Harassment

Fact or Fiction: A hostile work environment requires bad motives

November 3, 2011 | by Eric B. Meyer

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post”. So, let’s get right to today’s question:

If a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?

No way! FICTION!!!

Herman Cain, sexual harassment, and 10 lessons for employers

November 1, 2011 | by Eric B. Meyer

Speak into a microphone and point one finger in the air if your Halloween completely sucked.

Politico has reported that the National Restaurant Association paid out a five-figure settlement to two women who accused Herman Cain of making sexually suggestive comments.

Details on the allegations and lessons that employers can learn from this after the jump…

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90,000 women claim Wal-Mart discriminated against them

October 31, 2011 | by Eric B. Meyer

Back in June, the United States Supreme Court ruled here that a class of 1.5 million women could not pursue gender discrimination claims together against Wal-Mart because they lacked a common injury.

If, at first, you don’t succeed, file this Complaint in California on behalf of a class of only 90,000 plaintiffs. Will this small smaller lawsuit hold up? Find out after the jump…

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Is your arbitration agreement worth the paper it’s printed on?

October 27, 2011 | by Eric B. Meyer

Courts have blessed written agreements between employer and employee to submit federal discrimination claims to arbitration. Here is an example.

But, there’s legal and then there’s doing right. After the jump, how one employer got it wrong. Very wrong. Plus, what you can do to make sure that your business does not make the same mistake…

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Employee suing for AGE bias claims judge is too OLD to preside

October 26, 2011 | by Eric B. Meyer

From the sublime to the ridiculous, the NY Daily News reports here that a 60-year-old musician suing for age discrimination claims that the presiding 88-year-old Manhattan judge is too old to hear the case.

According to the NY Daily News story, the plaintiff, who was representing himself before his case was dismissed in October, slammed the judge, calling him “slow-witted and unable to function.”

In a pleading filed with the court, the plaintiff also wrote that the judge, who has degrees from Harvard and Columbia Law School, “may have been a very learned jurist in his day, [but] should be removed from the bench, both because of his mental and physical limitations [and because he] could barely see unless he put his face almost on top of a document.”

Equal-opportunity jerks take the “sex” out of sexual harassment

October 24, 2011 | by Eric B. Meyer

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff’s shoes) believe that the working environment are hostile or abusive.

Wait, I’m forgetting something. Oh yeah, the complained-of conduct must only be on account of the plaintiff’s gender. Seems simple enough, right? No sex-based conduct. No sexual harassment. After the break, a recent example that highlights this important element.

The ADA does not force employers to provide indefinite leave

October 21, 2011 | by Eric B. Meyer

Back in June, I discussed here how the EEOC was discussing the use of leave from work as a reasonable accommodation under the ADA. The question I asked back then was how much leave is reasonable? When is enough, enough?

Well, I can tell you now — and I suppose I could have told you then — that indefinite leave is generally not an option for employees (unless the employer acquiesces). At least that’s what one federal court ruled last week. Details after the jump…

Can Homer Simpson sue Mr. Burns for disability bias, and win?

October 11, 2011 | by Eric B. Meyer

In yesterday’s post, we looked at whether a morbidly-obese employee is protected under the Americans with Disabilities Act.

Today, let’s apply yesterday’s discussion to a “real-world” example. Is Homer Simpson disabled? And is the Springfield Nuclear Power Plant legally obligated to offer him a reasonable accommodation? The answers after the jump…

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Is morbid obesity a disability under federal employment law?

October 10, 2011 | by Eric B. Meyer

Recently, 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.

Is that right? Can being overweight be considered a “disability” under federal law? And, if so, what can companies do to find themselves staring down the barrel of loaded ADA lawsuit? I’ll answer these questions after the jump.

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A little ambiguity creates a BIG retaliation headache for employers

October 7, 2011 | by Eric B. Meyer

Retaliation claims have become the leading cause of action for employees. In fiscal year 2010, retaliation charges filed with the EEOC nationwide accounted for 36.3% of all filings, at 36,258. There are three essential elements of a retaliation claim:

Employee Protected Activity – opposition to discrimination or participation in the statutory complaint process;

Employer Adverse Action – any adverse treatment (beyond a petty slight or a trivial annoyance) that is based on a retaliatory motive and is reasonably likely to deter protected activity; and

Causal Connection – between the protected activity and the adverse action.

What makes retaliation claims so common? Well, it’s not so much because they are are easy for employees to prove. In my opinion, it’s because retaliation claims are tough for employers to disprove prior to trial.

Case in point after the jump…

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