Diversity and inclusion at Walmart (class action Phase 2). In early 2011, the U.S. Supreme Court rejected the massive Duke v. Walmart sex-discrimination nationwide class action because it was too large and had too many issues to fit within the class-action rules. The plaintiffs have now amended the complaint to focus only on 90,000 female Walmart employees in California. Duke v. Walmart (N.D. Cal., 2011). Get insight on this case in DiversityInc CEO Luke Visconti’s Ask the White Guy column.
Hostile employment environment cannot exist the moment employment ends. A moment can make a great difference. When a financial adviser submitted her resignation letter, a male manager applauded, grabbed her arm, pushed her out the building door and yelled, “Good riddance, b—-!” She sued for hostile-environment sexual harassment and constructive discharge. The court dismissed the case. There had been no sexually hostile environment prior to the resignation. There had been animosity between the manager and employee, but nothing to constitute sexual harassment. The resignation was triggered by a corporate territory reassignment that affected all advisors. Though the court found the manager’s conduct “reprehensible” and “unacceptable,” it was not actionable. It was impossible for the manager’s conduct to have “altered the employee’s terms or conditions of employment” when it occurred after she resigned. Overly v. Key Bank National Ass’n. (7th Cir., 2011).
Read more sex-discrimination cases and rulings in Is Going Out for Drinks Sexual Harassment? and Lying About Disability, Covering Up Sexual Harassment & Other Legal Issues.
Reacting to rumors does not create constructive-discharge case. A 60-year-old hotel sales manager heard rumors that upper management wanted to get rid of her and “hire someone young and cute as sales manager.” In reaction, she submitted a resignation in order to avoid the stigma of being fired. She then sued for age discrimination and constructive discharge. The court found no valid cause of action. The employee had suffered no adverse actions. Constructive discharge requires one to have suffered terrible overt treatment. The employee had not waited to suffer any actions at all. Her preemptive quitting left her with no case, even if she was eventually replaced by a younger person. Fritzpatrick v. Raymond Mgt. Co. (N.D. Ill., 2011).
Independent audit report overcomes case. A former school-district finance director sued and lost her discrimination case. After several financial improprieties surfaced, the district requested an audit. The auditor’s report found that the director’s department was “dysfunctional” and that she knowingly allowed irregular accounting procedures. The day after the report, the director filed a complaint alleging she was being mistreated because of her age, gender and Chinese national origin. She was fired soon thereafter. She sued, claiming the firing was because of her discrimination complaint and that she was replaced by a younger, white male. The court found that her “last-minute allegations” of discrimination were unconnected to the discharge. The independent auditor had already found ample nondiscriminatory evidence to warrant the discharge. Dellapina v. Tredyffrin/Easttown School Dist. (3rd Cir., 2011).
Employers have the right to change duties with changing times and technology. No job is static and employees have no right to hold on to the job description or duties of their original hire. Due to incidents of fraud, Walmart changed its return process from a manual check-off by the greeter to a more complex hand-held scanning device. A greeter was unable to effectively use the new device because of a neurological disorder, which was now an essential function of the job. He requested and was denied the accommodation of going back to the old manual system. He then sued, claiming that he should be entitled to continue the duties he was hired to do and performed well. The court ruled that this argument was “a nonstarter.” The new technology significantly reduced fraud, and any employer may change duties and technology if it can show a valid business reason, in spite of the consequences this may have for some employees unable to make the transition. Walter v. Walmart Stores, Inc. (N.D. Ind., 2011).
100% requirement is an automatic violation of the ADA. This case is in the “should have known” category. An employee took leave because of prostate surgery. He was cleared to return with restrictions on lifting and standing too long without the opportunity to sit. The company terminated him for being unable to perform 100 percent of the job. The employer should have known better. The ADA regulations and a long line of cases hold that a 100 percent return requirement is a “per se violation” of the law. The whole reasonable-accommodation concept is based on modifications because an employee may not be able to do 100 percent of the duties but can perform the essential functions. The employer should have engaged in the required interactive process to explore accommodations before making any decision. Nolan v. Arkansas (E.D. Pa., 2011).
Safety evaluation is not a medical examination. The ADA has strict guidelines on medical evaluations. A FedEx employee challenged a field-evaluation safety assessment of hearing, which he failed. The court dismissed the case, finding it was not a medical exam under the ADA. There were no medical personnel involved. The hearing evaluation was done under actual workplace conditions, with a practical assessment of whether the person was able to be effectively safe. There was also a valid reason for the evaluation. The employee had several accidents, apparently because of failure to hear directions, including people yelling loudly that he was driving in the wrong lane. Margharita v. FedEx Express (E.D. NY, 2011).
Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at email@example.com. For best practices to create inclusive workplaces that reduce discrimination based on sex, age and disability, visit BestPractices.DiversityInc.com.