June Legal Roundup: Another Misstep for Abercrombie

What did the company do now? Refuse to hire a job applicant because she wore a hijab.

Here's the latest on some discrimination cases that have gone before the courts:


National Origin and Religion | Disability | Age | Sex

NATIONAL ORIGIN AND RELIGION DISCRIMINATION

Clothing company should allow hijab.

Abercrombie & Fitch denied a job to a Muslim teenage applicant because she wore her hijab head covering to the job interview.

The Equal Employment Opportunity Commission (EEOC) charges that the company found the head covering was not consistent with its "Look Policy" requiring employees to wear clothing which is sold in Abercrombie stores and prohibiting them from wearing "caps." Abercrombie had made at least 70 exceptions to its Look Policy since 2006, including to the caps provision.

The court found sufficient evidence that the company failed to meet its reasonable accommodation obligation under Title VII.

EEOC v. Abercrombie & Fitch Stores, Inc. (N.D. Cal., 2013)

Failure to accommodate Muslim prayer creates case, but trying to accommodate Ramadan creates strike by Hispanic employees.

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The EEOC may maintain a case against a meatpacking plant for a pattern of denying the accommodation of appropriate break time for 150 Somali Muslim employees. However, the firing of 80 Somali Muslim employees was upheld due to their reaction to an anti-Ramadan strike by Hispanic employees.

When the company altered the work schedule and breaks to accommodate the Muslim workers for Ramadan, a large number of Hispanic workers went on strike to protest the changes to their schedules. The company then delayed the Ramadan schedule alteration to try to work out the issues. Eighty Somali Muslims left and refused to return.

The court found no religious discrimination since the fired workers were refusing to engage in continuing the interactive process so their claims for discriminatory discharge were dismissed.

(This was not an NLRA case over rights to strike. The Teamsters Union tried to be on both sides, approving the Ramadan schedule change, then also supporting the Hispanic workers who struck against the union's approved Ramadan accommodation.)

EEOC v. JBS USA, LLC (D. Neb., 2013)

DISABILITY DISCRIMINATION

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Having another employee do lifting was not a reasonable request for accommodation.

An employee with a permanent 20-pound lifting restriction applied for a promotion to a position requiring lifting of parts for inspection. Many parts were in excess of 20 pounds.

She requested the accommodation of having another employee present to lift those parts. The company declined and did not promote her. She sued under the ADA.

The court ruled that the employee was not a qualified individual with a disability since she could not perform an essential function of the job. The requested accommodation was not reasonable since the 20-pound lifting was ongoing, not occasional. Thus, the employer would substantially have to pay two people to perform one job.

Majors v. General Electric Company (7th Cir., 2013)

Employer bound by contract; union unwilling to grant accommodation.

An equipment operator/driver lost a leg in an accident. He could no longer do the essential job functions of operating excavating equipment and driving "big rig" trucks. The company tried to accommodate by assigning him to a smaller truck that he could operate and did not require the same loading/unloading duties.

However, the collective bargaining agreement seniority provisions required the union and other employees to agree. The other employees and the union would not agree to waive the seniority rights of others to the smaller truck assignment. The employee sued under the ADA for failure to accommodate.

The court dismissed the case. The ADA gives contract rights priority over accommodation; the company was bound by the contract.

Henschel v. Clare County Road Commission (S.D. Mich., 2013)

Rat phobia may be a disability, but company was not required to accommodate.

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A warehouse worker had an anxiety disability, including fear of rats and insects. The warehouse had both, despite eradication efforts.

The warehouse worker requested a complete cure in the warehouse or reassignment to a rodent-free and insect-free environment. There were no open positions. The employee took leave and would not return to the warehouse. No other positions opened except a Human Resource Specialist job. The employee was terminated.

In the ensuing Rehabilitation Act of 1973 claim, the court found that the employer could not reasonably create a pristine environment. Though it was not listed as a job requirement on the position description, rats and insects are a fact of life in many warehouses, which cannot be completely eliminated. The American With Disabilities Act (ADA) requires accommodation of placing a disabled person in a vacancy; however, one must be qualified for the job. The warehouse worker had no qualifications for the HR position. So it was not a viable or reasonable accommodation.

Murry v. General Services Administration (5th Cir., 2013)

DOT certification was essential function for trucking supervisor.

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A food-processing-company delivery manager lost his federal Department of Transportation (DOT) driving certification due to an eye condition. The position description required a DOT certification to supervise drivers and to do driving as needed.

The manager claimed he should be exempt from driving and could do all the "management" duties otherwise. He was terminated, and he then filed an ADA suit.

The court held that driving and the DOT certification was essential for the manager's position and dismissed the case.

Knutson v. Schwan's Home Service, Inc. (8th Cir., 2013)

DOT and commercial certification was NOT an essential function.

A gas-company supervisor was terminated when the company determined he was not qualified to hold a DOT driving certification. His job's position description required a certification.

However, the actual duties did not require driving commercial vehicles; he supervised mechanics and drivers. He had to ride along and observe their performance. He had to go to road locations to meet drivers or observe mechanics—in a regular car. He never actually had to drive a commercial vehicle to accomplish the job.

CDL/Commercial Certification may have been "preferred" for the position, but it was not "required." Thus, the manager had a valid ADA case.

Bailey v. AmeriGas Propane, Inc. (D. Md., 2013)

AGE DISCRIMINATION

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Dumb statement by bearer of bad news was not illegal, but still cost a lot.

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A company won an age-discrimination case but spent a huge amount on defense costs due to a stupid statement by a supervisor.

A 61-year old rental agent was fired. On a rating scale of 100—with 80 as minimum acceptable—she rarely achieved even a 56. Corporate headquarters reviewed overall performance of all agents, plus her violation of several important policies, and ordered her to be fired due to her ratings.

Her supervisor had no role in this decision but had to deliver the message. In the meeting, the supervisor called the employee "old Rose" and opined that "you're slipping and getting too old for your job." The fired agent filed an age-discrimination case under the Age Discrimination in Employment Act (ADEA) and Michigan's Elliott-Larsen Civil Rights Act.

The court dismissed the case because the supervisor's statements were unrelated to the actual termination decision. The decision was made at a higher level, for valid, nondiscriminatory reasons.

But did the company really "win"? A federal case often costs the company more than $100,000 in defense costs. Improper statements by supervisors cost employers countless dollars in lost profits or budgets even if the case is eventually "won." This case would never have occurred except for the supervisor's unprofessional comments.

Marsh v. Associated Estates Realty Corp. (6th Cir., 2013)

SEX DISCRIMINATION

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Goodwill settles case for discrimination against men.

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The EEOC alleged that there was systemic discrimination against male employees in hiring and promotion.

The case alleged that Goodwill favored women at local donation centers due to a stereotype that women have better customer-service skills.

Goodwill will pay $130,000 in back pay and agree to provide jobs or promotions to 18 men. It will also take extensive monitoring and training efforts regarding its employment practices.

OFCCP v. Goodwill Industries of Southern California (2013)

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

Salary History Cannot Justify Sex-Based Pay Gaps: U.S. Appeals Court

Women made 82 cents for every dollar earned by men in 2016, according to U.S. Labor Department data.

REUTERS

(Reuters) — A U.S. appeals court on Monday ruled employers cannot use workers' salary histories to justify gender-based pay disparities, saying that would perpetuate a wage gap that is "an embarrassing reality of our economy."

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NYPD Sued for Forcing Muslim Women to Remove Headscarves in Arrest Photos

The lawsuit added that another officer had openly mocked the Muslim faith.

(Reuters) — Two Muslim American women and a non-profit group on Friday sued the New York City Police Department for forcing Muslim women and others to remove their hijabs or other religious head coverings in post-arrest photographs.

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Three Men Charged with Minnesota Mosque Bombing

In the early morning of Aug. 5 authorities were notified about an explosion at the mosque after a bomb was thrown from a van or truck through the window of the imam's office while worshipers were gathered for morning prayers.

MUSLIM AMERICAN SOCIETY OF MINNESOTA FACEBOOK PAGE

(Reuters) — Three men from a rural Illinois community were arrested on Tuesday and charged in the 2017 bombing of a mosque outside Minneapolis and the attempted bombing of an Illinois abortion clinic, U.S. prosecutors said.

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Fox News Settles Gender Discrimination Suit with Female Reporter, Says Lawyer

Diana Falzone said she was abruptly taken off air by Fox News after writing an article about her struggle with endometriosis, a medical condition that would likely leave her infertile.

REUTERS

(Reuters) — Journalist Diana Falzone has settled a gender discrimination lawsuit she filed against Fox News and left the company, her lawyer said on Thursday.

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Ben Carson's HUD to Scrub Anti-Discrimination Language from Mission Statement

As the Trump administration seeks to cut HUD's funding, the agency is aligning its mission with "the secretary's priorities."

A year after beginning his position of Housing and Urban Development (HUD) secretary, Ben Carson has decided that it's time to update the agency's mission statement and remove words and phrases like "inclusion" and "free from discrimination."

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Disability Rights Under Attack by Congress

"Everyone is just one bad day away from needing accessible options the #ADA requires to help them get around," tweeted Sen. Tammy Duckworth.

Rights for Americans with disabilities are under attack in a bill disguised as reform of the Americans with Disabilities Act.

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BBC Denies Gender Bias as Women Staff Denounce Unequal Pay

The BBC has been struggling to quell anger among female employees since it had to name its best-paid on-air staff last July and disclose their pay bands.

(Reuters) — Women working for the BBC have complained they are paid less than men in equivalent jobs and accused managers of misleading them about their pay to hide widespread gender discrimination at Britain's public broadcaster.

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