White supervisor fired for racial email has valid discrimination case over unequal discipline. A white supervisor received and then forwarded to others in the company a racial email titled “Why There Are No Black NASCAR Drivers.” It contained a series of derogatory stereotypes of Blacks. The supervisor was fired for violating the company’s anti-harassment and improper-computer-use policies. He sued under Title VII, claiming that the discharge was racially discriminatory. The court agreed that he had a valid case because, in the same time frame, several Black employees had been using company email to circulate “How to Dance Like a White Guy!” It contained a series of derogatory terms and stereotyped characterizations of white men. However, these employees only received short-term suspensions for violation of the harassment and computer policies. There was an appearance of racial disparity in the issuing of discipline for virtually the same infraction. Smith v. Lockheed-Martin Corp. (11th Cir., 2011).
EEOC ordered to pay employer’s legal fees because of frivolous case. The EEOC mounted a nationwide class-action lawsuit alleging that a large employer had a hiring policy with an adverse impact on Blacks. The alleged policy involved improper consideration of arrest-conviction records. However, during the discovery process, the company provided clear evidence that no such policy existed, and it had actually hired a large percentage of the people the EEOC accused it of rejecting. Nonetheless, the EEOC continued to pursue the case for two more years, requiring the company to expend great sums on the defense. The court ruled that the EEOC should pay all those costs and fees from the point it clearly should have known its case was without foundation, and the continuation of the case from that point was frivolous EEOC v. Peoplemark, Inc. (W.D. Michigan, 2011).
No policy/no training dooms company to liability. A male ironworker won a Title VII gender-stereotyping harassment case. The supervisor on a bridge-construction project thought the employee acted too “feminine” and not “rough enough for an ironworker.” He then engaged in a series of abusive comments and sexual taunts and exposed himself to the worker. When the employee complained, the company transferred him to a lower-paying job that was slated for layoff—and then laid him off. The company had no policy prohibiting harassment and had given no training to its supervisors regarding their duty to prevent harassment. A jury gave a half-million-dollar verdict to the ironworker. EEOC v. Boh Brothers Construction Co. (E.D. Louisiana, 2011).
Female concrete tester promoted more slowly than all men. A federal concrete- and soil-testing technician was hired first, yet promoted only after virtually all of the later-hired male technicians. She filed suit under the Equal Pay Act. The U.S. Bureau of Reclamation claimed that she had performance problems that delayed her advancement; however, it presented no tangible evidence to back that claim, and the court found the defense to be suspicious and found a valid cause of action for unequal pay because of gender-based slow promotion. Lee v. Salazan (D. Utah, 2011).
Destruction of interview notes sinks case. “Spoilation” is the term for destruction or alteration of evidence. Spoilation results in courts assessing penalties or even precluding the party from presentation of evidence at all because of a presumption that if some is spoiled, then all of it is suspect. In Talavera v. Shah (USAID) (D.C. Cir., 2011), a federal employee with excellent evaluations alleged she was passed over for promotion and filed a Title VII case. She also alleged that this was because of her complaint about sexual harassment by a contractor. The department claimed the promotion was based on another candidate’s “superior” interview performance. However, the interviewing supervisor destroyed all interview notes. The court concluded that it was reasonable to infer the destruction was done to hide evidence of either discrimination or pretext, which would undermine the department’s defense.
Restaurant manager shows evidence that discharge was pretext. A restaurant manager informed the company that he had a brain tumor and would eventually need a several-month leave of absence. Three days later, he was fired for having improperly altered the time and pay records of employees. He sued under the Americans with Disabilities Act (ADA). The court found that the termination was suspiciously close to the company learning of the disability. Further, several employees testified that their records had, in fact, not been changed and were accurate. The court found evidence of pretext in the reason given for firing the restaurant manager. Meinelt v. P.F. Chang’s China Bistro, Inc. (S.D. Texas, 2011).
Car salesperson did not request reasonable accommodation. A salesman at an auto dealership took leave for a heart condition. He then provided no information about his expected date of return. He made no contact at all. After 15 weeks, his employment was terminated. He then sued under the ADA. He claimed that sales positions are high turnover, and he “didn’t think it would be of any concern” for the dealership if he was out for a while. The court dismissed the case. A person with a disability has an obligation to keep the employer informed and to actively request an accommodation, such as leave of absence. An indefinite leave without information about an expected return date is not reasonable. Jacoby v. Bethlehem Suburban Motor Sales (E.D. Pennsylvania, 2011).
Bridge worker’s fear of heights is valid disability. A bridge worker’s acrophobia resulted in a “no work over 25 feet high” restriction. He was terminated because of failure to meet essential functions of the job. However, a court found that his particular job mostly involved ground work. Further, the employer had a history of swapping duties depending on the strength and weakness of the employee assigned to a job. The employee’s accommodation request was met with a supervisor’s statement, “I’ll tell you right now we don’t grant requests!” The court found evidence of failure to engage in the required interactive process and insufficient foundation to show an undue hardship to deny the accommodation request. Miller v. Illinois Dept. of Transportation (7th Cir., 2011).
Firefighting is an essential function for fire-department job. This would seem to be a logical conclusion. However, a fire investigator’s primary work is usually after the fire is over and cold. Because of a heart condition, the investigator could not engage in the high-intensity physical and emotional stress of active fire suppression and requested the accommodation of not being required to do so. The department declined the request. The employee took early retirement and then sued under the ADA. The court ruled for the department. Because of budget cuts, the department had a lean staff and all firefighting-qualified employees had to be able to fill in for short staffing or for multiple fire situations. There was no operational latitude for a firefighter-qualified person who could not engage in that duty when needed. Cremeens v. City of Montgomery (11th Cir., 2011).
Regular, predictable attendance is an essential function. A teleservice employee with serious food allergies that triggered without notice had frequent, unpredictable absences. He requested a flexible schedule in which he would not be required to have consistent attendance. The employer declined, informing him that his repeated absences were seriously harming the mission of his position. He sued under the Rehabilitation Act. The court ruled for the employer, finding that for that position, regular attendance was an essential function; “attending whenever able” and ongoing absence without prior notice was not reasonable. Lang v. Social Security Administration (S.D. California, 2011).
Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at email@example.com.