Archived: 'Equal-Opportunity Bullies,' Forced Family Leave & More in Latest Legal Update

Injury was not because of race. A white employee was hit by a half-ton steel coil, which fell from a machine operated by a Black employee. In addition to a worker’s-compensation claim, the injured worker sued under 42 U.S. Code 1981 for a racially hostile environment. He claimed the Black coworker had been aggressive toward him in the past, and the injury was a deliberate act motivated by racial animosity. The court dismissed the case. A thorough investigation and all evidence showed the coil incident was a pure accident. There was evidence that the machine operator was intimidating but was an “equal opportunity bully.” He was “aggressive toward all of his coworkers regardless of race.” Black employees were subjected to the same aggressive behavior. Further, there were no racial comments or overtures present in the machine operator’s behaviors. Finally, the court found the “aggressive” behaviors were not severe enough or frequent enough to constitute a hostile environment in general. Yancick v. Hanna Steel Corp. (7th Cir., 2011).

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

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