March Legal Roundup: Can You Be Fired for an Interracial Relationship

Here’s the latest on some employment-related legal cases that have gone before the courts:

Constitution/First Amendment | Race Discrimination | Disability Discrimination | Sex Discrimination | Genetic Information Nondiscrimination Act

Constitution/First Amendment

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White man cannot be fired for engagement to Black woman.

A white county employee was harassed by coworkers and managers, and then discharged due to his engagement to an African-American woman.

He filed and won a case under 42 U.S. Code 1983 and state law for violating his First Amendment right of freedom of association, which includes the right to intimate association. There was a lack of any legitimate interest for a public-sector employer to interfere with that relationship.

The employer was found liable under 1983. Managers, including a human-resources coordinator, were found personally liable under state law for either participating in the harassment or for failing to adequately address it to prevent harm to the employee.

Matusick v. Erie County Water Authority (2nd Cir., 2014)

Race Discrimination

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“Loving” use of N-word by dark-complexioned supervisor was not excusable.

An African-American services coordinator at a nonprofit agency complained that her supervisor was abusive, “yelling,” “screaming” and routinely calling her the N-word or making statements about her and others, such as “you act like n—-s all the time.” When she complained, she was told that she was “out of line” and “being too emotional.” She continued to complain about the behaviors and was fired.

She sued for racial discrimination under 42 U.S. Code 1981 and under the New York Human Rights Law. The employer defended by claiming that the supervisor was a “dark-skinned” Puerto Rican who was using the N-word affectionately to another dark-skinned person. The comments were “motivational” instead of derogatory.

A jury ruled in favor of the plaintiff, finding an offensive, hostile environment and retaliatory discharge. On appeal, the judge stated, “Under no circumstances that I can conceive of would calling a subordinate a n—- be acceptable conduct” and “The supervisor’s after-the-fact rationalization is equally farfetched.” (The court did reduce the jury award down to only $250,000 due to its concern over the plaintiff’s secret tape recording of the supervisor’s statements.)

Johnson v. STRIVE East Harlem Employment Group (S.D. NY, 2014)

Disability Discrimination

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Passing out is not “sleeping on the job.”

Photo by Shutterstock

A company was aware that an employee was diabetic and had occasional complications. He passed out from hypoglycemia and dehydration. His supervisor found him unconscious, revived him and sent him home. Then the supervisor reported that the employee had been discovered “sleeping on the job” and unresponsive (the first such incident).

The employee’s doctor placed him on a short leave due to the incident and sent a report to the company stating that the employee had passed out due to his diabetic condition. The company refused the medical information because it was “after the fact.” The company fired the employee for sleeping on the job and then cancelled his health insurance, denying him COBRA due to “misconduct.”

In the resulting case, the court found “more than sufficient evidence” of failure to engage in the required interactive process, failure to accommodate and disparate treatment, since there were other nondisabled employees who had received only lesser discipline for sleeping on the job. (One worker was caught sleeping 20 times before discharge.)

Willoughby v. Connecticut Container Corp. (D. Conn., 2014)

Employee allergic to air quality at Environmental Protection Agency.

An Environmental Protection Agency employee filed a Rehabilitation Act case for failure to accommodate her allergic reaction to the workplace. When she raised her concerns, she was first assigned to a special “clean space facility.” However, she then stated that this did not solve her allergic reactions. Management installed special air purifiers and filters and tested the air qualify in her area daily. The tests showed the air to be cleaner than air anywhere else in or outside the facility.

She left work on medical leave and demanded the accommodation of work from home, including the EPA’s installation of all work-station equipment at her house, since her job required daily interaction with other staff, contractors and vendors. She asked that staff travel to her home and that the EPA install cleaning equipment so all staff, contractors and vendors would be required to change clothes and bathe before entering her home office, to eliminate all allergens. The EPA declined her request, and she did not return to work.

The court dismissed the case on summary judgment. It found that the EPA had tried accommodations. The employee’s job required presence in the EPA’s offices to regularly work with others. The employee’s requests regarding refitting her home and the requirements she wished to impose upon others were unreasonable and unduly burdensome.

Morris v. Jackson and EPA (D. DC, 2014)

Sex Discrimination

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Warning to doctor to apologize and stop offensive conduct was not enough.

A nurse complained that a surgeon was harassing her with sexual comments, sexual propositions, touching and showing her sex videos on his laptop, including videos involving women and animals.

The hospital found the behavior to be overt and persistent. However, its corrective action was to merely direct the doctor to apologize and offer the nurse a transfer to a different unit, which she alleged was detrimental to her. She sued.

The hospital’s defense claimed that it had met the Faragher-Ellerth standard of promptly investigating and addressing the issue. The court, however, found a valid basis for a case that the hospital had not met its Title VII duty to “exercise reasonable care to correct.” There was no formal action against the harasser at all, yet the victim was forced to transfer. That was not an adequate cure. The hospital’s actions instead send a message that harassers have nothing to fear; those who complain will be sent away.

Sanders v. Christus Santa Rosa PASC (W.D. Tex., 2014)

Genetic Information Nondiscrimination Act (GINA)

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The ADA allows post-offer medical evaluation; GINA limits what can be asked!

A nursing and rehabilitation facility followed the ADA by requiring applicants to have medical evaluations only after making a “conditional offer” of a job. However, the medical professional then asked questions about one’s family medical history (i.e.: Has there been any heart disease, diabetes, etc. in your family Are your parents living or deceased When and what deceased from — the “standard doctor questions”).

GINA prohibits any inquiry into family history in an employment-related context. The EEOC brought suit. The company settled. However, it sold its business during the process. The original company was liable for $370,000, but the purchaser also is obligated to terms of compliance under the settlement.

EEOC v. Founders Pavilion, Inc. (W.D. NY, 2014)

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

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