Race Discrimination

Diversity and inclusion in the corporate culture could mean preemptive hiring is discrimination. A Black employee alleged that she was denied a promotion to a higher IT position, and a less-qualified Asian employee was selected instead. The employer’s defense was that she never applied for the position and, therefore, could not contest the decision. However, the evidence showed that the manager: knew there were only two eligible employees; knew the Black employee intended to apply; did not wait for the application deadline to expire; and directed the selection of the Asian employee and stopped the hiring process, while the application period was still open. The evidence further showed that the plaintiff rated far higher on performance factors than the person selected, and other key managers considered her “superior by a wide margin.” The court found that the employer’s defense seemed to be a pretext for racial discrimination. Calhoun v. Johnson (D.C. Cir., 2011). For best practices in recruitment, watch Diversity Recruitment Web Seminar: How to Find 1,800 Black & Latino Employees.

Race discrimination claim ruled “nonsense.” A white police applicant filed a race-discrimination case alleging that he was bumped from a hiring list, passed over, so that lower-scoring “minority” applicants could be hired. He identified two “minority” officers who were hired. The court upheld summary judgment, dismissing the case as frivolous and “nonsense.” The plaintiff’s complaint relied on hearsay and stray comments he had heard from people who were not involved in the hiring (loose rumors, conjecture and pure speculation). The actual evidence showed that: the plaintiff was not “passed over,” he was eliminated due to failing the background check; the two identified “minority” officers had been hired in a process that was long over before he even applied, and neither of them had “passed over” anyone; and finally, the bottom half of the roster that the plaintiff was on were all white (some of whom were hired), so he could not have been bumped by a “minority.” His entire case was based on conjecture, unfounded rumors and stereotypes about “affirmative action” hiring instead of evidence. Thompson v. Lansing Mich. (6th Cir., 2011). For more on stereotypes, read ‘Blacks Should Not Be Satisfied With Food Stamps’: The Danger of Stereotypes and NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words

Sex Discrimination

HR manager files class-action suit against Toshiba. A former HR manager has filed suit requesting certification of a class of “all females who are or have been employed by Toshiba in the United States.” The suit alleges systemic gender discrimination in compensation, promotion and terms and conditions of employment under Title VII and the Equal Pay Act. The suit seeks to cover all Toshiba subsidiaries. The plaintiff had been an HR manager for the Toshiba Nuclear Energy Corp. subsidiary Cyphers v. Toshiba American, Inc. (S.D., NY, 2011). (Whether such a large class will be certified may rest on the outcome of the pending Walmart decision by the U.S. Supreme Court.)

Trashing harassment complaint creates case. After-the-fact action does not cure the problem. A clerical employee gave a written complaint of sexual harassment to her supervisor after several verbal complaints received no action. The supervisor wadded up the complaint, threw it in the trash, pointed at the door and said, “This is total [BS]! I want you out of here and never want to see you again!” She left, assuming she was fired. However, two days later the company’s HR director learned of the incident, called the employee, informed her she was not fired and asked her to come back. She refused, claiming that she could not reasonably reenter the environment after what occurred. She sued for Title VII retaliation. The court ruled that there was a valid claim of retaliation. The supervisor’s act clearly violated Title VII. The company’s attempt to cure was too late to overcome such an overt act by the supervisor. Young-Lousee v. Graphic Packaging Int., Inc. (8th Cir., 2011).

Disability Discrimination

Is an essential function essential to the job? A shoulder injury made a UPS driver unable to do his job. He applied for several other positions he believed he could do. The company rejected him, due to essential job functions in the job descriptions requiring lifting and mobility beyond his medical limitations. However, the employee produced evidence that these functions were not actually performed in the real job. The court allowed the case to go to trial. The courts give great weight to an employer’s determination of what duties should make up a job, and the position description’s list of essential functions are a powerful defense in an ADA case. The court, though, ruled that there must be more than a hollow defense. “The employer will have to show that it actually imposes such requirements on its employees in fact and not simply on paper.” Supinski v. United Parcel Service, Inc. (3rd Cir., 2011).

Messing up president’s schedule was valid reason for discharge. A communication director had cancer. He incorrectly scheduled the organization’s president, resulting in the president missing a major, important public-relations event. The communication director was fired. He sued, claiming that he was replaced by a person without a medical condition and therefore the discharge was a prima facie case of disability discrimination. The court disagreed. It found no connection between the cancer and the discharge. A major job blunder is a valid non-discriminatory reason for discharge. McCermott v. New York City Housing Development Corp. (S.D. NY, 2011).

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post ‘I Didn’t Get the Job Because I’m Black’ appeared first on DiversityInc.

Click the images below, or the following links, to expand the view or download a PDF: Disability Employment Awareness Month Timeline and Disability Employment Awareness Month Fact & Figures

National Disability Employment Awareness Month

1700s

1751 Pennsylvania Hospital, with help of Benjamin Franklin, creates nation’s first special section to treat mental illness and “mental retardation”

1773 Virginia establishes first hospital solely for treatment of “idiots, lunatics and other people of unsound mind”

1776 Stephen Hopkins, a man with cerebral palsy, signs the Declaration of Independence. He is known for saying “my hands may tremble, my heart does not”

1800s

1805 Dr. Benjamin Rush, considered the father of American psychiatry, publishes Medical Inquiries and Observations, the first modern
attempt to explain mental disorders

1817 First school for deaf in U.S. opens in Connecticut

1829 Louis Braille publishes raised-point alphabet

1907 Indiana becomes the first state to enact a law to sterilize “confirmed idiots, imbeciles and rapists” in state institutions. The law is
enacted in 24 other states

1900s

1918 Congress passes first major rehabilitation program for soldiers because of the large number of World War I veterans returning with
disabilities

1921 The American Foundation for the Blind is founded

1924 Virginia passes law allowing sterilization (without consent) of individuals found to be “feebleminded, insane, depressed, mentally handicapped, epileptic and other”

1927 U.S. Supreme Court rules forced sterilization of people with disabilities is not a violation of constitutional rights

1935 Social Security Act establishes federal benefits for elderly people, funds to states for assistance to blind individuals and children with
disabilities

1939 Nazi euthanasia program is instituted to eliminate “life unworthy of life.” Up to 250,000 people with developmental or physical disabilities are killed

1945 National Employ the Physically Handicapped Week is created

1950 Veterans and people with disabilities begin development of national standards for “barrier-free” buildings

1956 Social Security amendments create disability insurance for workers with disabilities 50–64 1958 Social Security amendments extend disability benefits to dependents of workers with disabilities

1960 Rome hosts first Paralympics Games

1961 Making Buildings Accessible to and Usable by the Physically Handicapped is published. Forty-nine states adapt accessibility
legislation by 1973

1962 Ed Roberts, a young man with polio, fights rejection from the University of California, Berkeley and later helps establish the first Center for Independent Living

1964 The Civil Rights Act prohibits discrimination on the basis of race, religion, ethnicity or national origin, laying foundation for disability rights movement

1965 Medicare and Medicaid are established under Social Security Amendments

1970 Judy Heumann sues New York City Board of Education after application for a teaching license is denied because her wheelchair
is “a fire hazard”

1973 Rehabilitation Act of 1973 prohibits discrimination in federal programs and services receiving federal funds

1974 The last “Ugly Law” is repealed in Chicago. They had allowed police to arrest people with “apparent” disabilities for no reason

1975 The Education of All Handicapped Children Act requires free public education in least-restrictive setting for children with disabilities

1976 Amendment to Higher Education Act of 1972 mandates services for college students with physical disabilities

1978 Frank Bowe publishes “Handicapping America,” considered the text for the disability-rights movement

1980 Civil Rights of Institutionalized Persons Act gives the Department of Justice power to sue state or local institutions that violate
the rights of people held against their will

1984 Voting Accessibility for Elderly and Handicapped Act makes polling places accessible to people with disabilities

1990 President George Bush signs Americans with Disabilities Act (ADA), requiring fair employment practices and protection from discrimination in employment, transportation, telecommunications, public accommodations and state and federal services

1992 United Nations creates International Day of Disabled Persons

2000s

2004 Army commissioned officer Tammy Duckworth loses lower legs after helicopter is hit by grenade, the first female double amputee from Iraq war. Receives Purple Heart and promotion to major in December; becomes disability activist 2006 First bill is passed that requires history of disability rights be taught to K–12 public-school students 2008 ADA Amendments Act grants broader protections for workers with disabilities

2009 Genetic Information Nondiscrimination Act protects employees/job applicants from genetic information discrimination

2010 President Barack Obama signs executive order calling for an additional 100,000 individuals with disabilities to be employed
by federal government over five years, and to increase retention of employees with disabilities, including employees injured on
the job

2011 New ADA rules come into effect for expanded accessibility requirements in recreational facilities and standards for mobility devices in public spaces, as well as clearly defined “service animal”

Sources: DiversityInc, disabilityhistoryweek.org, Temple University, whitehouse.gov, National Consortium on Leadership and Disability for Youth (NCLD/Y), Ability Magazine

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Racial Discrimination

Racial names do not justify slapping customer. A white customer suspected of shoplifting was escorted to a security area for questioning. The customer’s white friend then barged into the area, cursing at the store employees, one of whom was Black. She used the N-word toward the Black store employee, who reacted by slapping the verbally abusive customer in the face. The police were called and both customers were arrested. The store then fired the employee for having slapped the customer, in violation of its no-violence policy and no-physical-contact-with-customers policy. The fired employee filed a Title VII race-discrimination case, alleging that Kmart was promoting a racially hostile environment and “ratifying hate speech” by firing the victim of harassment. The court ruled against the employee. The customer’s behavior was clearly harassing and improper. However, the store took prompt action to have the police remove the offender. The company had policies on how to deal with customers for these situations and how to raise complaints without escalating a situation. Slapping a customer was against policy and not warranted by a verbal situation. The employee’s escalation to the physical level was unwarranted and justified discharge. Lee v. Kmart Corp. (D. Minn., 2012).  For more on the discrimination and the N-word, read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words.

Hostile supervisor loses discharge case. A Cuban-born manager filed national-origin and race-discrimination cases under Title VII and 42 U.S. Code §1981 after he was discharged. The evidence showed that the manager’s employees filed complaints about his supervisory behaviors. The evidence was that he yelled and swore at employees, used a “brutal and belittling manner,” demeaned them as they were dealing with customers, and generally “created a fearful environment.” When human resources met with him about these concerns, the manager refused to acknowledge any of the issues and expressed that he would not change his management style. He was fired as a result. The court found valid reason for the discharge and no evidence of any similarly situated non-Latino manager. The only other managers who were cautioned about rough supervisory behaviors had immediately recognized issues, expressed a sincere interest in change and corrected the behaviors, instead of digging in their heels and refusing to acknowledge the concerns. The manager’s case was dismissed. Martinez v. W.W. Granger, Inc. (8th Cir., 2012).

Religious Discrimination

Proselytizing judge loses case. A Michigan State Court administrator filed a complaint about the chief district judge’s use of the courtroom to proselytize. She alleged that he used his judicial position and authority to promote his particular religious beliefs, in violation of the Constitution. The judge then fired the administrator. She sued. The federal court jury awarded $734,000 in economic, compensatory and punitive damages. The appellate court confirmed the verdict, plus attorney fees. It found that the administrator’s complaint was clearly constitutionally protected; it addressed a matter of serious public concern. The chief district judge’s actions were clearly retaliatory against a citizen’s right to freely speak out against a government official’s alleged violations of the Constitution. Pucci v. Somers (E.D. Mich., 2012).

Disability Discrimination

Essential function can depend on number of other employees to bear the burden. A nurse suffered a stroke. She rehabilitated enough to return to work, but not full time. She could work limited hours with no on-call duties. This meant the other nurses had to put in extra duty hours and pull more frequent on-call nights, weekends and holidays. The nurse could not provide a return-to-full-time estimate and was ultimately terminated for inability to meet the essential scheduling requirements. She filed an ADA case and lost. There was no duty to convert a full-time job to part time. The court ruled that “A job function may be considered essential by virtue of the limited number of employees available to perform the work.” The ADA does not require accommodation by shifting essential functions and extra burden onto others. Azzam v. Baptist Healthcare Affiliates, Inc. (W.D. KY, 2012).

TSA immune from most employment suits. A diabetic Transportation Security Administration employee had a foot infection, took leave and returned with a fitness-for-all-duties doctor’s certification. His TSA supervisor refused to let him return because he “was too much of a liability.” He then, with EEOC support, sued under the Rehabilitation Act. The court dismissed the case. It ruled that the legislation creating TSA exempted the agency from liability under the Rehabilitation Act, FLSA, ADEA and several other employment laws. The court made a broad interpretation of the general clause in the Act giving TSA the power to set and enforce its employment standards “notwithstanding any other provision of law.” National security overrides all other interests. Field v. Napolitano (1st Cir., 2011).

Family and Medical Leave Act

Double damages for failure to give proper notice of change in FMLA policy. A company had an FMLA policy, providing 12 weeks per calendar year. So each January 1, there was a fresh 12 weeks available. It then changed to a “rolling” method, giving 12 weeks’ leave in a 12-month period measured back from the current usage. It did not send notice to employees about this change. In April, a 36-year employee requested and was granted FMLA. He had taken FMLA the prior calendar year as well. The company terminated the employment a month prior to his expected return because it now counted the prior year’s FMLA (pre-January 1) as part of the use in the past rolling 12 months. The effect was not only loss of a job; it also cut him off from retirement benefits he would have had in just two more years. In the FMLA suit, the court found bad faith on the part of the employer. It could not hold employees to a new policy that had not been communicated to them. (The FMLA generally requires a 60-day written notice of policy changes before they become effective.) The company’s actions were like springing a trap door without warning. The bad-faith interference with FMLA rights warranted double damages, an adjustment of the discharge date by two years to create eligibility for retirement benefits, and attorney fees, for a total of over $400,000. Thom v. American Standard, Inc. (6th Cir., 2012).

Click here to read more court cases on diversity legal issues.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post Racial Discrimination: Black Employee Fired After Being Called the N-Word appeared first on DiversityInc.

“Our country’s veterans deserve more than just our respect – they deserve our support in helping them return to the civilian workforce,” said Linda Jimenez, WellPoint’s chief diversity officer and vice president, diversity and inclusion. “WellPoint is committed to supporting veterans through our partnership with the 100,000 Jobs Mission and other outreach efforts.”      

Enlisting in the 100,000 Jobs Mission advances WellPoint’s objective of assisting military veterans. In fact, the company has been named to G.I. Jobs magazine’s Top 100 Military Friendly Employers® list for the past three years. The Veterans’ Organization of WellPoint (VOW) employee resource group plays a valuable role in building a workplace culture that embraces employees and family members who have military experience. The company donates $50,000 annually to the USO, and WellPoint employees put together care packages for deployed military personnel. 

In addition, our Life and Disability Insurance companies further demonstrate WellPoint’s commitment to helping disabled veterans live active lives through sponsorships of sporting opportunities run by The Wounded Warrior Disabled Sports Project^TM

To meet its commitment to 100,000 Jobs Mission, WellPoint will recruit veterans by attending job fairs and other veteran hiring events across the country, by posting jobs on Transition Assistance Online (TAOnline.com), — the largest source of transition information, jobs and tools for separating military) — as well as HireVeterans.com and other online veterans job sites. 

“Our goal is to assist veterans within our communities and within our company,” said Randy Brown, WellPoint’s executive vice president and chief human resources officer.  “I am proud to be part of an organization that stands behind its mission: To improve the lives of the people we serve and the health of our communities. I believe we can truly make a difference with our support of the 100,000 Jobs Mission.” 

For more information about the 100,000 Jobs Mission or upcoming hiring events, visit www.100000jobsmission.com. 

The post WellPoint Joins 100,000 Jobs Mission Pledging to Hire Veterans appeared first on DiversityInc.

Disability Discrimination: 

Walmart manager’s unreasonable conditions for diabetic employee violated ADA. A Walmart meat-department employee with diabetes had always kept her testing kit close by at her desk in the work area. A manager ordered her to remove it to her locker, at a far end of the store. (There was no apparent significant reason for this direction.) The employee protested that she needed to frequently test her blood sugar, and she could not get to the locker soon enough to test and control her condition. Nonetheless, she was ordered to remove the test kit. Then she was told that if she left her work station to go to her locker, she would be fired. She could only test her blood sugar on breaks or lunch. Unable to effectively test and control, the employee soon had a major diabetic reaction while in the store’s meat cooler. She had a seizure and was hospitalized and unable to resume work at Walmart. Walmart defended by claiming she did not actually have a disability because she had always been able to perform all essential functions of her job. The court rejected this defense. The plaintiff had been able to do all functions until the manager’s direction and withdrawal of any accommodation made it impossible for her to successfully function. Berard v. Walmart Stores East LP (M.D. Fla., 2011). 

Employer should have waited a little longer. A route salesman experienced dizziness, memory loss and pain due to a heart condition. His doctor stated that he should not drive. Thus, he could not perform his job of driving the route. He took a leave under the company’s six-month short-term disability program, and others covered the route. The doctor had not provided any estimate of ability to return to work. The company sent a notice of inability to hold the job open indefinitely and its intent to have a replacement (as allowed under the ADA for an “indeterminate leave”). However, the employee promptly replied that he expected to be cleared for work in 30 days. The company replaced the driver. In 30 days he was cleared for return, but the job was now filled. He sued under the ADA. The court found the company had acted too quickly. Once the employee claimed a 30-day return possibility, the leave was no longer “indefinite.” The company should have continued the leave and engaged in the interactive process regarding the reasonability of holding the job for another 30 days. Hutchinson v. Ecolab (D. Conn., 2011). 

Uniform application and OSHA approval do not save overbroad medical inquiry. In response to a serious workplace accident, an employer created a mandatory certification process for all equipment drivers. This included a medical questionnaire form. One driver objected to the invasiveness of the questions. (Among other things, it asked for identification of any past illness or accidents, date of onset, all medications, etc.) He was fired for refusing to submit the form. In the following ADA case, the company defended by claiming: all drivers, whether with a disability or without, were uniformly required to submit the form; and OSHA had approved the questionnaire. Both defenses failed. The medical-inquiry sections of the ADA apply to every employee or applicant, not just to those with disabilities. A “uniform application” of an illegal form is still illegal. OSHA is not the agency with authority over the ADA. Any non-expert agency’s approval, whether OSHA, DOT or the IRS, means nothing regarding whether the form meets ADA requirements. Just as an expert plumber cannot certify a building’s electrical system, OSHA cannot certify anything for ADA compliance. The company may still present evidence to show the medical questionnaire was not overbroad and was consistent with business-safety necessity. Miller v. Whirlpool Corp. (N.D. Ohio, 2011).

Read “7 Things NEVER to Say to People With Disabilities” for tips on how to avoid disability discrimination charges.

Age Discrimination: 

Seventy-year-old employee fired for allegedly attacking 65-year-old supervisor. An employee was fired after 57 years of employment. He claimed in his ADEA case that he was subjected to age-discriminatory comments by his coworkers prior to the discharge; they called him “old sick man,” said he was “too old for the job” and told him he should retire. However, there was no evidence the coworker comments had any effect on management’s decisions. Instead, the court believed the company had a valid reason for termination. The employee had an argument with his supervisor and struck or attempted to strike the supervisor. Further, there was no indication the company had any age bias—the supervisor was older than 60. Igaravidez v. International Shipping Corp. (1st Cir., 2011).

Legislative and Administration Action:

Fair wages under Americans with Disabilities Act would eliminate special pay certifications. An act introduced by Reps. Cliff Sterns (R-Fla.) and Tim Bishop (D-N.Y.) would end the special sub-minimum-wage programs for workers with disabilities. Currently, employers who apply for special certification can pay certain workers with disabilities less. The sponsors of the act state that it is no longer valid to presume that workers with disabilities are less productive and warrant unequal pay.

Read more legal articles here.

 Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post No ADA Accommodation Leads to Seizure, Hospitalization for Diabetic Worker appeared first on DiversityInc.

In a follow-up to my column “Can a White Man Speak With Authority on Diversity?”, a reader asks a critical question.

Comment: 

I find it fascinating over the pond about how the sheer notion that being experientially [sic] near a Black person can somehow give you some sort of osmotic sub-experience. It does not. If you are a white, heterosexual male with a good education, you will have little concept of the subtleties of racism and how it conspires in a myriad [sic] and mosaic of ways, and these micro-oppressions build up gradually and are pernicious for a lifetime.

Visconti has found a hook that is ironic but marketable. He will get more exposure, access to better marketing and media channels than Black people and more white male attendees at his conferences. He will benefit from being white and talking about the Black experience because he is white. It’s a beanfeast for him.

I have had bosses who do diversity and are white, but they really believed it, lived it and would lie in traffic for it. I’m not convinced in this case as he can only speak from the head, not the heart. 

And yes, I’m talking about race unapologetically, the cornerstone of most oppression. 

Response:

I completely agree with your first paragraph and your last paragraph. I both agree and disagree with the middle of your email. 

I understand how you can say it’s “marketable” and that I have a “beanfeast” because you’re looking at a successful business. It was nothing but a concept when we started out in 1997. “Diversity” existed as a business subject but was nowhere near where it is today. There were no outside investors that helped my business; however, there were and are courageous corporate people who see the DiversityInc vision and go to bat for us. 

One indication of the impact of our collective work is the number of companies that participate in the DiversityInc Top 50 competition. It has gone from 178 in 2004 to 535 in 2011. The results of the companies that achieve a spot on the DiversityInc Top 50 list have also increased; for example, percentages of people in structured mentoring and employee-resource groups have more than doubled, as have the percentages of bonuses paid to CEO direct reports for the accomplishment of diversity-management objectives. This all happened because DiversityInc applied metrics and honest witness to a business process. Our DiversityInc Top 50 companies are significantly better for women and/or Black, Latino and Asian executives by absolute measurement. Since metrics cannot be consistently evaluated for LGBT people and people with disabilities, we can only look at practices—but here, too, things are dramatically different than they were in 2004. We don’t recommend that companies chase race and gender numbers, but race and gender numbers act as a very good proxy for measuring the corporate culture. Read more about this:

The DiversityInc Top 50 Companies for Diversity
DiversityInc Top 50: Methodology
About The DiversityInc Top 50 Companies for Diversity 
DiversityInc Top 50 Survey FAQs

You are right in that I have benefited from being white—my entire life, but especially in my choice for my life’s work. I recognize the irony and tragedy that I, as a white man, must repetitively speak before mostly non-white, non-male, disabled and non-heterosexual people to spread this message. It hurts my heart every time I tell people who are oppressed that only the oppressed can lead the oppressor out of their behavior. As a society, we do not understand the words of Frederick Douglass, who said, “No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck.” I agree with you that race is the cornerstone of most oppression, but I will add that gender is an even larger cornerstone than race.

I have respected that and have endeavored to give back as much as I can. I’ve been a trustee of Bennett College for Women for eight years, a trustee of Rutgers for four, and I’ve been on the foundation board of New Jersey City University (an HSI) for five. I’m on the board of The PhD Project and on the Chief of Naval Operations Executive Panel. All of this is unpaid work. Further, I’m not a passive board member; I have endowed scholarships at all three schools and am on the “heavy-duty” committees (I have chaired audit at Bennett for six years and have been on the nominating committee at Rutgers for three). I’ve raised more than $2 million as chair of the Rutgers Future Scholars fundraising committee. I have my own foundation, a 501(c)3, and 100 percent of my speaking fees are donated to the schools that I serve via my foundation. Nobody draws a salary from my foundation, and I donate all administrative costs. This year will be the fourth that I’ve donated roughly 33 percent of my take-home pay to charity. 

Those are facts and figures, but I hope you can see how much my heart is in this. It’s everything I do. I’ve had death threats and am currently being smeared by a hate-filled anonymous person via email (thanks for nothing for being an enabler, Yahoo). It scares the daylights out of me sometimes. Not so much for my own safety—I’m a master-rated rifleman and expert pistol shot—but I have a wife and children, and I travel quite a bit. You see, I “lie in traffic” for what I do every day.

>> Read more “Ask the White Guy” columns at DiversityInc.com.

The post Yeah, But Is Your Heart in Your Diversity Work? appeared first on DiversityInc.

Injury was not because of race.

Fifteen years is not too late. A disability retiree collected disability benefits for 15 years and was still able to file suit contesting the amount of the payments. Soon after beginning to receive the benefits, the retiree wrote to the insurance company questioning the amount and method of calculating the monthly payment. She received no response. Periodically, she again, and again, wrote to state her belief that her payments were improperly low, sometimes with years between letters. Again, the insurance company never replied. Finally, the company responded to a letter, denying any error in benefit amount. The employee then sued. The company contended that the three-year statute of limitations was long past; the plaintiff cashed the benefits checks and clearly knew the amount, and she should have sued within the three-year period. The court held for the retiree. It found the statute of limitations only began after the insurance company officially and finally denied the request for more benefits. The company’s silence for 15 years simply kept the issue alive. Withrow v. Bache Hasley Stuart Shield Salary Protection Plan (9th Cir., 2011).

Employer and union violated ADEA in early-retirement agreement. Management and the union agreed to an early-retirement plan for correction officers. Those who retired at age 55 received continuing employer contributions to health insurance until age 65. Those retiring after age 55 but prior to age 65 did not. The older employees filed an age-discrimination action against the employer and their union. The court found that age was the sole factor in the less-favorable treatment of those older than 55. The defendants’ argument that federal law allows age-55 compulsory retirement of law-enforcement officers was to no avail. If all officers had been forced to retire at 55, this would have been legal. However, the employer and union did not force retirement. Once they decided to allow continuing employment past age 55, all who decided to keep working and retire later had to be treated in a non-age-discriminatory manner. They could not be penalized for continuing to work. EEOC v. Minn. Dept. of Corrections and Minn. Law Enforcement Assoc. (8th Cir., 2011).

Forced FMLA leave is valid when employee cannot perform job. A nurse’s injury created a lifting restriction far less than what was necessary to do her job and provide patient care. The hospital placed her on involuntary FMLA leave and then terminated the employment when the FMLA expired and she still could not meet the lifting requirement. The nurse sued, claiming she should have been placed on light duty. The court ruled for the hospital. Light duty is not required by the FMLA. If an employee cannot perform a job because of a serious medical condition, an employer can force FMLA usage. The leave is not just triggered by an employee request. Kleinser v. Bay Park Community Hospital (N.D. Ohio, 2011).

Actions against married couple violate First Amendment. A federal court of appeals has validated a case brought by a married couple who worked in an Ohio correctional facility. The wife was superintendent of the facility; the husband was a training officer in the facility but was not under his wife’s supervision. The department discharged the husband and demoted and transferred the wife to another city. This was done allegedly without valid cause and was “substantially motivated” by the fact that they were married. The First Amendment freedom of association protects marriage against government intrusion unless there is a “compelling governmental interest.” Government officials should clearly know this and cannot claim any immunity from suit. The state must show a real problem, such as a direct reporting relationship, favoritism or other serious problems before taking any action based on employees’ marriages. Gaspers v. Ohio Dept. of Youth Services (6th Cir., 2011). (A number of states, including Wisconsin, have Marital Status Anti-Discrimination Laws, which provide that employers cannot prohibit married couples from working together unless one directly supervises the other or there is some direct conflict of interest.)

Read more legal articles here.

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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