Gender Discrimination

Food company settles OFCCP charges of adverse impact hiring discrimination. A national food distributor has agreed to pay approximately $200,000 and change its hiring practices. The Office of Federal Contract Compliance Programs (OFCCP) charged that the company’s hiring practices discriminated against women. In a nine-month period, the company hired only six out of 90 qualified female applicants (6.6%) for “order selector” positions at one of its facilities. Out of the male applicants, the company hired 40 of 150 qualified applicants (26.6%). The OFCCP considered this disparity too great to be random and too great to avoid a conclusion of gender discrimination. The situation was heightened by evidence that a number of the rejected female applicants had experience and credentials which were equal to and greater than the men who were hired. The settlement monies will go to women who were not hired, and a number of those will also be offered jobs. This was a no-fault settlement because it was reached in a conciliation process, before the OFCCP proceeded to the enforcement stage. OFCCP v. Nash Finch Co. (Administrative Settlement, 2012). 

Religion/National Origin Discrimination

Offensive mannequin and one comment were not enough to create harassment case. A Jewish hospital employee of Mexican origin filed a case on religious/national origin’ harassment and for retaliatory discharge after he complained about the harassment. The harassment consisted of three incidents. There were mannequins in one area of the hospital. The supervisor noticed that one had a “Hitler-style mustache” and thought it would be funny to position the arm in a Nazi salute. The Jewish-Mexican employee saw this, was offended and put the arm back down before the end of the day. He then called the internal complaint hotline about the offensive incident. During the call he also stated that he heard that the same supervisor had previously referred to the hospital’s cleaning crew as “those Mexicans,” allegedly in a negative tone. The employee then transferred to another location. At that location he was critiqued for performance issues and complaints by patients about his work. This critique eventually led to discharge. He filed a Title VII case on religion, national origin and retaliation. In the case, he added the evidence that the supervisor who posed the mannequin had also once noticed the large Star of David necklace worn by the employee and said, “That’s gaudy!” This was further evidence of anti-Semitic animosity.

The court granted summary judgment, dismissing the case. The incidents were not sufficiently severe or pervasive to constitute illegal harassment. Neither the mannequin pose nor the Mexican comment were directed at the employee. Though insensitive, there was no indication the less-than-a-day mannequin pose was intended to be anti-Semitic. Not every Hitler reference or parody has such an intent. The jewelry comment had no religious reference attached. It was a large piece of jewelry, and the court would not interpret a religious meaning to an otherwise neutral comment. Finally, the performance critique and discharge were by a different supervisor, in a different location. The evidence was that this supervisor had no knowledge of the employee’s prior hotline complaint and so could not have acted in retaliation. De La Rosa v. Hanger Prosthetics and Orthotics, Inc. (D. Ariz., 2012).

National Origin Discrimination

Deputy sheriff can maintain retaliation case for investigation of her citizenship status. A 13-year veteran deputy sheriff of Mexican descent made an internal written complaint about alleged improper treatment of and derogatory and discriminatory comments made to and about Mexican inmates in the county jail. The following day, she was suspended pending an investigation of her own status—was she a U.S. citizen or legal resident? The deputy was able to produce the evidence of citizenship and was reinstated. However, the court validated her ensuing suit for retaliation under 42 U.S. Code § 1983, against the county, the sheriff and two other personally named defendants. The judge found a substantial foundation that the reason for the sudden investigation of the deputy’s legal status was her complaint about improper treatment and national origin discrimination, a matter of public concern. Garcia v. Arapahoe Co. Sheriff’s Office, et al. (C.D. Col., 2012).

Disability Discrimination 

Failure to confer with coach/guardian can violate interactive process. Some disabilities render the person less capable of communicating without assistance. This may be true for visual and hearing conditions and is often the case with intellectual disabilities. A kitchen worker with an intellectual disability was capable of doing the job if his supervisor was reasonably sensitive to his understanding abilities and manner of direction. His accommodation plan included a request to consult with a third-party job coach or his guardian regarding accommodation requests and before any tangible employment decisions. The employee did make requests for accommodation, which seem to have been ignored. There was no communication with the designated third party. He was then fired, again with no consultation with the designated third party. This violated the established accommodation plan and the ADA-required interactive process. The company agreed to settle the ensuing case for $255,000 plus a series of compliance requirements. EEOC v. Bannes Health (Administrative Settlement, 2012).

State employee cannot sue under ADA-Title II. The U.S. Supreme Court has ruled that state agencies are immune from suit under the ADA’s Title I employment sections due to the 11th Amendment’s “sovereign immunity” clause. (Employees can file cases under the Rehabilitation Act if the agency takes federal funds for a program they work under.) Title II of the ADA, however, specifically applies to state and all other government agencies. Title II prohibits discrimination by any public entity “in any public services, benefits or activities.” A university employee alleged she was discharged due to failure to accommodate her spinal conditions. She sued under Title II, claiming the language covered any discrimination, including employment actions, by an entity which provided public services. The court disagreed. It ruled that Title I and II are mutually exclusive. Title II is limited to those who are recipients or participants of the public services and not the employees of those services. Ewell v. Bd. of Regents of the U. of Oklahoma (10th Cir., 2011). This is the fourth court to make this finding (also the 3rd, 6th and 9th Circuits). However, the 11th Circuit has allowed a Title II employment case. So other cases may be brought to test the waters in other circuits.

History of drug use vs. current drug use. The ADA does not protect an employee from the consequences of current drug use. However, there is a “safe harbor” for those who have a “history” of use, have completed a treatment program and are no longer using. Where is the transition point? In Shirley v. Precision Castparts Corp. (S.D. Tex. 2012), an employee was abusing prescription painkillers at work. Instead of discharging him, as it could have, the company allowed a leave for treatment with the condition that he complete treatment. After two days, the employee checked out of the program, against the doctor’s advice. He was fired. He sued under the ADA, claiming he had a protected disability as a “former user.” The court disagreed, finding “current use” means “recent use.” The employer could infer the use was current, especially since the person failed to complete treatment and checked out after only two days. There must be a “sufficient time” after the last use to qualify for the “safe harbor” protection.

One year is enough time, and college perceived employee as drug dependent and disabled. A mailroom supervisor at a private college became dependent on prescription pain medication following a series of back surgeries. He tested positive for an “excessive amount” of opiates. He entered and completed a treatment program for addiction. He continued to take a different prescription medication for his continuing surgeries and pain, monitored by his physician, along with opiate-blocking medications. A year after the completion of the drug-treatment program, the college again ordered a drug test. It again showed the presence of prescription pain medication. The college fired the employee. In this case, the employee did qualify under the ADA’s “safe harbor” as a person with a record of past treatment. Further, the college did not establish that the prescription medication level was “excessive.” It did not ascertain that he was taking the medication under his doctor’s monitoring and treatment advice. Thus, the termination violated the ADA, based on the employer’s perception of drug addiction, instead of a valid foundation. The jury awarded $300,000, plus attorney fees and costs. Fowler v. Westminster College (D. Utah, 2012).

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

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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.

By Barbara Frankel

In all likelihood, the government will resolve the budget issues, and the automatic $1.2 trillion in budget cuts known as sequestration won’t be triggered in the first week of March. But if it happens, there’s been web chatter about companies’ benefiting from EEOC cuts because there would be fewer discrimination lawsuits.

Actually, the exact opposite is true. I spoke with Gil Casellas, the former chairman of the EEOC, and Bob Gregg, an attorney who specializes in discrimination law and writes a monthly column for us. Your company’s potential for costly lawsuits is actually much higher if sequestration or other major budget reductions occur. The EEOC would lose between 6.5 percent and 8.2 percent of its budget ($23 million to $30 million), according to the American Federation of Government Employees (AFGA).

What’s important to your company is where the EEOC chooses to make the cuts.

Casellas points out that the EEOC’s budget for litigation support is usually relatively small, and unless the entire category is cut, “which is not likely given the obligations the commission has to court as a litigating party,” smaller decreases in this area wouldn’t have much impact.

Fewer Cases Resolved Quickly

But if the cuts are directed toward field personnel, “the slowdown of investigations would be felt by charging parties as well as employers, whose wait times for charge resolution will increase dramatically,” says Casellas.

In other words, the mediation and arbitration that usually results in settlements and quick ends to discrimination charges wouldn’t happen, “and uncertainty of outcomes as well as delay doesn’t benefit the majority of employers who seek speedy resolution.”

Gregg notes that past cuts to the EEOC budget led to more work for plaintiffs’ attorneys as cases dragged on. In George W. Bush’s administration, from 2001–2008, the EEOC lost 25 percent of its staff and the backload of complaints grew dramatically.

“The EEOC screens out a lot of cases so employers get them resolved with a minimum of fuss,” Gregg says. With diminished resources, employers end up with lengthier litigation and public-relations nightmares.

EEOC Numbers 

The EEOC already had its budget reduced by $7 million last year, leading to a 9 percent staff cut, according to the AFGA, the union that represents EEOC employees. This comes at a time when the caseload is up.  As a result, the EEOC filed only 122 lawsuits in FY 2012, according to an article on Lexology, less than half the 261 filed in FY 2011. The authors note that if the EEOC tries to “do more with less,” the emphasis may be on more high-profile, large-scale discrimination claims against employers.

The post Would Budget Cuts at EEOC Help or Hurt Your Company? appeared first on DiversityInc.

By Bob Gregg

EEOC announces 2013 priorities. The Equal Employment Opportunity Commission (EEOC) has announced its four-year (2013–2016) Strategic Enforcement Plan. The agency plans to devote additional attention to the issues of identifying and eliminating discriminatory recruiting and hiring barriers; enforcing equal-pay laws; protecting immigrant, migrant and other vulnerable workers; preventing harassment; preserving access to the legal system; and addressing “emerging issues.” Emerging issues identified in the plan include the ADA Amendments Act standards, pregnancy accommodation, and coverage of LGBT under Title VII provisions “as they may apply.” This last item recognizes the growing de facto inclusion of LGBT discrimination under Title VII, often as “gender stereotyping,” even though the law does not specifically include those as protected categories.

National Origin Discrimination

In EEOC v. PBM Graphics, Inc. (M.D. NC, 2012), the company will pay $334,000 to “on-call” temporary workers. “On-call” workers wait to be called in only “as needed.” The suit, under Title VII, alleged that PBM established a “core group” of Latino on-call workers who were told to report every day unless called off. They became, in effect, regulars. Other on-call workers, U.S. citizens, were still only on-call and only called when the “core group” was not sufficient, thus seriously diminishing their employment.

EEOC v. Hamilton Growers, Inc. (M.D. Ga., 2012) was a case brought under Title VII, the FLSA and the Migrant & Seasonal Agricultural Workers Protection Act. The EEOC alleged that the company laid off virtually all of its U.S. citizen farm workers, almost all of whom were Black, and replaced them with H-2A guest workers from Mexico. Contrary to the stereotype of replacing higher-paid U.S. workers with lower-paid foreign labor, the company allegedly paid higher rates to the H-2A workers than to the few U.S. employees it did retain. The EEOC alleged that this was also done in an effort to motivate the remaining U.S. employees to quit. Again, the company denied the charges while settling the case for $500,000.

Disability Discrimination

Educating women to tolerate harassment was not a reasonable request for accommodation. An employer received numerous complaints about a male employee’s sexual comments, staring and following of female workers. He produced certification of a Pervasive Developmental Disorder (PDD) which caused low control of these behaviors. He requested the reasonable accommodation of having his treating therapist educate the female staff so they would understand his disability and be more tolerant of the behaviors. The employer denied that accommodation, and he was terminated for continued sexual harassment. He sued under the ADA and Rehabilitation Act for failure to accommodate. The court dismissed. It found the requested accommodation to be “unreasonable on its face, as a matter of law.” No one should have to accommodate by tolerating ongoing and overt sexual harassment. It also found the plaintiff to not be a “qualified person with a disability.” His disability rendered him unable to follow valid rules of workplace conduct; therefore, he could not meet essential functions of the job. McElwee v. County of Orange (2nd Cir., 2012).

Gender Discrimination

The fact that harassment stopped is not enough to avoid liability; employer has a duty of care to take corrective action. A county secretary complained that the planning office’s legal counsel subjected her to a pattern of overt verbal and physical sexual comments, touching and sexual gesturing. When she complained to the department director, he laughed and agreed that the attorney was “a pervert,” then did nothing. At about the time of the complaint, the secretary announced that she was pregnant. The harassment stopped. Nonetheless, the secretary filed a harassment case. The county defended, claiming that the harassment ceased after her complaint, so there was no liability. The court disagreed. It ruled that an employer has a duty to actively address harassment situations. Doing nothing is not adequate. Just because the harassment happened to coincidentally stop, fortuitously, does not excuse the employer from its obligation to actually address and correct the attorney’s behavior. The county’s nonaction on the complaint fell below the required duty of care. Henricks v. White County (N.D. Ind., 2012).

Religion Discrimination

Is veganism a religion? A hospital required all employees to have a flu shot. It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable-accommodation requirements. One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium. Thus, the shot would put an animal product in her system. The hospital fired her for not following its policy. She sued for religious discrimination, claiming a sincere religious belief in her vegan practice. The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII. However, the court found sufficient foundation for the case to proceed. Title VII covers “moral or ethical beliefs . . . held with the strength of religious views.” The plaintiff’s strongest point is that she quoted Biblical scripture about dietary restrictions and purity while refusing the flu shot. Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio, 2012).

Veterans Discrimination

Laid-off status is a valid “re-employment position.” The Uniformed Services Employment and Re-Employment Rights Act (USERRA) requires that service members returning from active duty be reinstated to the job they left, including to the position their job became while they were gone (such as reclassifications to a higher level, pay increases, enhanced duties, etc.). This is called the “escalator principle.” Upon return from deployment, the plaintiff was informed that his job had been eliminated in a layoff of an 18-person unit, so there was nothing to restore him to. He sued. The court ruled in favor of the company. The law requires reinstatement to the position one “would have had absent military interruption.” If he had not been called to duty, the plaintiff would have been laid off in the unit elimination. He is entitled to no better treatment than had he been employed the whole time, so his laid-off status is exactly what his job “escalated to.” The employer is not required to create a new or different job. Milhauser v. Minco Products, Inc. (8th Cir., 2012)

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

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HCA bought the hospitals from Health Midwest in 2003 for $1.13 billion. As part of the deal, the Healthcare Foundation of Greater Kansas City was established to receive 80 percent of the proceeds, which would fund organizations that serve the underinsured in the Kansas City area. The foundation sued HCA in 2009, claiming the company had not lived up to its commitments to make improvements in the purchased hospitals, but rather had built two new ones. HCA was unable to show that it had discussed this decision with the institutions’ community boards. The suit was also brought because of the foundation’s concerns about HCA’s inability to provide consistent reporting on charity care.

Charity-Care Gap

Here’s what the testimony about HCA’s charity care revealed:

• The foundation expressed concern not only with HCA’s failure to make good on its commitment to charity care, but also that the level of charitable care decreased at Research Medical Center, in Kansas City’s “urban core,” while charity care in relatively affluent, suburban Overland Park Regional Medical Center had increased dramatically following the purchase.
• Mark Flaherty, the foundation’s General Counsel, testified that he was puzzled by this discrepancy because, given its size and location, he would have expected Research Medical Center to continue requiring the largest amount of charity care. He told The New York Times, “That was a big red flag to us.”
• Judge John Torrence noted that HCA made conflicting public statements about charity care it provided in its Annual Reports and Community Benefit Reports. HCA provided no explanation at the trial for this discrepancy in reporting.

The majority of U.S. hospitals—4,699 out of 5,724—are not-for-profit, according to the American Hospital Association. Nonprofit hospitals pay no federal, state or local taxes, and in return are expected to offer a community benefit, including free or discounted care for low-income patients.

Generally, nonprofit hospitals operate in areas with higher average incomes, lower poverty rates, and lower rates of uninsurance than for-profit hospitals. The Affordable Care Act passed last year includes new rules for how not-for-profit hospitals must report charity care.

One of the terms of the HCA-Health Midwest purchase agreement specified that HCA would continue to implement diversity initiatives for employment and purchasing that HCA had in place at its existing operations. HCA operates approximately160 U.S. hospitals in addition to six hospitals in London.

Diversity & Inclusion Factor

HCA has never participated in the DiversityInc Top 50 process, which this year has more than 30 hospital participants.

According to HCA’s Community Support Update, 15 percent of corporate sponsorships were in the category of Diversity & Inclusion. The same report also describes HCA’s commitment to culturally competent care and its diversity-education series for employees. Among the 2012 DiversityInc Top 5 Hospital Systems, all of which are not-for-profit, 29 percent of philanthropic spend was directed to multicultural organizations

HCA’s website includes a diversity link one click off the homepage and features the company’s Diversity & Inclusion Vision Statement: “At HCA, we will provide culturally competent care to every patient we serve. We will foster a culture of diversity and inclusion across all areas of our company that embraces and enriches our workforce, physicians, patients, partners and communities.” Carolyn Caldwell, the CEO of Centerpoint Medical Center, one of the new facilities built by HCA Midwest, is one of the few Black female hospital CEOs in the U.S. This month, she began a three-year term on the American Hospital Association’s board of trustees.

HCA intends to appeal the decision and, in a statement on HCA Midwest’s website, the company noted the division’s commitment to charity care, which was stated as $97.4 million in the division’s 2012 Community Impact Report.

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EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd Cir., 2012).

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

The post Reverse Discrimination? EEOC Allows Bias in Favor of People With Disabilities, Older Workers appeared first on DiversityInc.

Additionally, the government will use another $1.9 billion to purchase fractioned land allotments from current proprietors and return that land to the tribe. The deal also includes a government-funded scholarship for American Indian youth.

“These settlements fairly and honorably resolve historical grievances over the accounting and management of tribal trust funds, trust lands and other non-monetary trust resources that, for far too long, have been a source of conflict between Indian tribes and the United States,” said Attorney General Eric H. Holder Jr. in a statement.

The lawsuit initially was filed in 1996 by Blackfeet tribe leader Elouise Cobell after she witnessed those who leased American Indian land gain wealth from selling its resources. There was no accounting of the royalties from this land that was held in trust for them by the government, actions that prolonged poverty in the American Indian community. Cobell died in 2011 from cancer.

“We all are happy that this settlement can finally be implemented,” said lead attorney Dennis Gingold in a statement. “We deeply regret that Ms. Cobell did not live to see this day.”

Another 60 similar class-action lawsuits against the government have not yet been settled. American Indian tribes across the country, including the Osage tribe in Oklahoma, the Chippewa tribe in Minnesota and the Nez Perce tribe in Idaho, await resolution and payout.

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Justices recently held an hour-long oral argument to discuss whether a person without the ability to hire or discipline employees can qualify as a supervisor in racial, sexual and religious discrimination cases. An employer automatically assumes liability if a supervisor is accused of harassment; when a coworker is accused, the victim must prove neglect on the part of the employer to extend liability.

Liable for Discrimination?

The debate stems from the Vance v. Ball State University racial discrimination case, in which Mattea Vance claimed her “supervisor,” Sandra Davis, created a racially hostile working environment.

The federal court—which had defined a supervisor as the power to hire, fire, demote or discipline—threw out Vance’s case, as Davis’ job responsibilities did not include these functions. Vance appealed because the Equal Employment Opportunity Commission’s (EEOC) defines “supervisor” as anyone who has authority to assign or direct daily work activities or recommend employment actions. Listen to the radio broadcast to learn more.

“There are lots of situations where people have power over other employees when they don’t have the power to fire them, to discipline them, to promote them, to set their wages or things like that,” says University of Virginia law professor Daniel Ortiz, who represents Vance. The AARP and National Partnership for Women & Families also are backing Vance.

“This is consistent with workplaces across America today, where jobs are less hierarchical, more collaborative, and so where you have got more senior employees by virtue of their experience or job title, just a paper title, are in a broad sense team leaders of the like in the workplace,” Gregory Garre, representing the university, told CNN. “That doesn’t mean they are supervisors in any traditional sense.”

Will Discrimination Lawsuits Increase?

If the Supreme Court rules in Vance’s favor, it could potentially increase the number of discrimination cases that actually make it to court. The conservative justices argued that a less-restrictive standard could leave companies suffering for the acts of mid-level employees, which would fall under scrutiny.

A decision is not expected until sometime after winter 2013.

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Chiropractic clinic was not a tribal business. Even though all stock was owned by the Cherokee Nation, a chiropractic clinic was incorporated under the state laws of Oklahoma. It operated off of the reservation, contracted to serve a U.S. Army base. It was open to business for all of the service members and civilians on the base and others, overwhelmingly non-Cherokees. A fired technician filed age-discrimination and Title VII suits. The clinic moved for dismissal, claiming Sovereign immunity. The court denied the motion: A “separate legal entity” status incorporated under Oklahoma law precluded it from sharing in the Cherokee Nation’s sovereign immunity. Somerbolt v. Cherokee Nation Distributors (10th Cir., 2012).

Salvation Army waived immunity when it took federal money. Many organizations have a legal or constitutional exclusion from suit, but when you take the money, you take the rules that come with the contract. Even though the Salvation Army is clearly a religious organization and immune from many employment laws, it can be sued by a rejected job applicant with a disability. It took federal money to provide social services. The Rehabilitation Act applies to all contractors who receive federal funds. Taking the money was a voluntary waiver of any immunity from suits under that act. Doe v. Salvation Army (6th Cir., 2012).

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

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Watch the video below to learn more about the history behind this case, which was filed in 2010.

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