November Legal Roundup: Does ADHD Excuse Verbal Abuse

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


Disability Discrimination | Sex Discrimination | National-Origin Discrimination | Age Discrimination | Race Discrimination | Labor Relations | Family and Medical Leave Act

Disability Discrimination

Back to top

Selective Impairment Does Not Substantially Limit Police Supervisor

Photo by Shutterstock

A police sergeant had ongoing communication issues. He was described as arrogant and abusive, and those under his supervision filed grievances claiming he was “tyrannical, belittling, threatening and intimidating.” The sergeant was placed on leave as the charges were investigated. While on leave he informed the department that he had ADHD, which impaired his interpersonal communications, and he requested reasonable accommodation to assist in his communication issues. The department, though, decided to discharge due to the inappropriate behaviors. The sergeant sued under the Americans With Disabilities Act for failure to accommodate. The court dismissed the case, finding that his ADHD did not create a substantial limit on the major life activity of effectively interacting with others. It appeared that all of the inappropriate behavior was directed toward subordinates. The sergeant could routinely communicate very well, and perfectly appropriate, with those above him. Selective communication issues do not meet the ADA standard.

Weaving v. City of Hillsboro (9th Cir., 2014)

University Acted on Presumption, Failed to Verify

An applicant was denied a job as a security guard when he revealed that he received regular kidney dialysis. The university concluded that, with frequent dialysis treatments, he could not meet the essential function of working rotating shifts. The Equal Employment Opportunity Commission brought suit on his behalf. The evidence showed he had worked for five years previously as a security guard, on rotating shifts, and managed his dialysis and work schedules. The university did not appear to do the “individualized assessment” which is required by the ADA.

EEOC v. Howard University (D.C., 2014)

Sex Discrimination

Back to top

Requiring Same-Gender Instructor Was Wrongful, Attempted Remedy for Sexual Harassment Created Worse Discrimination

Photo by Shutterstock

A trucking company was sued for sexual harassment when a male trainer harassed three new female driver-trainees. As a cure, the company adopted a same-gender policy for the over-the-road training. Only female trainers would be on the road with female trainees. However, the company had very few female trainers but many male trainers. This resulted in a backlog for newly hired women. There was a “female waiting list” which could be a year long before the training occurred. Some women dropped out of the process due to the long wait. Newly hired men got almost immediate training and quickly started earning money as drivers. As a result, men with the same offer-of-hire date got a much quicker “start” date, with months earlier seniority in the ability to get priority in assignments, etc. The effort to prevent harassment had created a worse sex-discrimination problem.

EEOC v. New Prime, Inc. (W.D. Mo., 2014)

Biscuit Assembler or Dumpster Stacker OFCCP Charges Discrimination Against Men

The Office of Federal Contract Compliance Programs and a federal contractor have settled a case alleging that job applicants at an Alabama plant were steered to job categories based on gender. Male applicants were slotted into dumpster-stacker jobs, a more physical and less skilled job. Women were steered to biscuit-assembler positions, a less physical and more mechanized job. There were a lot more biscuit-assembler positions than dumpster-stacker jobs. The result is that many fewer men were hired. The alleged steering significantly limited hiring opportunities for men. The company will pay $330,000 in back wages, interest and benefits to rejected male applicants, and will make job offers to 73 members of the original class as positions become available.

OFCCP v. Hillshire Brands Co. (Agency settlement, 2014)

National-Origin Discrimination

Back to top

Grocer Pays $6.5 Million to Settle Unequal-Pay Case

A grocery chain will pay $6.5 million to Latino employees after allegations that the company adopted separate pay scales for its stores in Latino areas (with 75 percent Latino employees) versus those in non-Latino areas (with only 15 percent Latino employees). The workers in the Latino-area stores made significantly lower wages for identical work. The case was brought under Title VII and 42 U.S. Code 1981.

Estrada (and EEOC) v. Bashas’ Inc. (D. Az., 2014)

Age Discrimination

Back to top

“I Didn’t Swallow” Was Not an Effective Rationale

A Walmart employee was fired for “grazing” chicken poppers from the hot-food takeout counter. This violated the store’s strict policy on taking consumable products. She first denied the act, then admitted that she put the poppers in her mouth “as a quality-control test,” but claimed she quickly spit them out. She claimed she did not eat the food and therefore could not be guilty of “grazing.” She sued for age discrimination, claiming the company’s discharge reasons were pretext in order to replace her with a younger employee. The Court did not agree. First, there was nothing in her job description or duties regarding quality control or tasting. Second, the company did not set out to target her as an older worker. In fact, it was investigating grazing by a younger employee. He then pointed a finger at her, “She does it too!” The younger employee was also fired. Third, the no-grazing rule did not require swallowing; once it is in the mouth, the product is no longer sellable. There was no evidence of pretext or discrimination.

Simon v. Wal-Mart Associates, Inc. (E.D. Mich., 2014)

Race Discrimination

Back to top

Negative Comments About Interracial Relationship Were Not the Cause of Discharge

A Black hospital employee claimed that his romance with a white nurse was the reason for his discharge. He cited evidence of critical comments made about the relationship by others at the hospital prior to the discharge. However, the court found that the negative comments were not about race. Instead, they were about the negative effects of the romance and about the couple using work time for personal conversation or excessive personal calls to each other, and not paying attention to clients. The critique was race neutral. Further, the plaintiff could not refute the evidence that the discharge was due to lack of attention to patients and filling out false reports.

Thompson v. The Webber Hospital Association (D. Me., 2014)

White Teacher Has Case for Bias and Stereotyping

A white teacher was fired after receiving negative reviews from her Black supervisor. The court denied summary judgment to the school district after finding evidence that the reviews were tainted by racial prejudice and stereotyping. It also found evidence of retaliation, since she was fired only two months after filing an EEO complaint. There were supervisory comments that white teachers were “not equipped to teach Black students” because they were white. The plaintiff’s supervisor told her to “look in the mirror” to see what race you are, because “some people aren’t made for the hood!” The plaintiff alleged she was not provided the support to succeed, including evidence of different standards for student discipline applied to white teachers. Black teachers could use more aggressive discipline and assertive verbal behavior toward students, whereas a white teacher doing the same would be labeled a “racist” and receive critique.

Hendricks v. Pittsburgh Public Schools (W.D. Pa., 2014)

Labor Relations

Back to top

Pregnancy Is Not an On-Duty Injury

A police department created light duty for injuries that occurred while on the job. An officer filed a grievance when her request for light duty to accommodate her pregnancy was denied, resulting in on-the-job difficulties performing her duties. The arbitrator ruled that pregnancy did not qualify as an “injury,” and it was not an on-the-job caused condition. Thus, it did not fit within the scope or purpose of the light-duty policy.

In re Village of Menomonee Falls and Menomonee Falls Police Association (2014)

Family and Medical Leave Act

Back to top

Overly Rigid Attention to Forms Violated FMLA

The model Department of Labor forms for FMLA leave contain a space for the employee to fill in “date of return.” An employee did not complete this line because she and her doctors could not predict whether treatment of her daughter’s cancer would take a long time or the daughter would pass away soon and end the leave. The employer knew this was the situation. The employer fired the employee for unauthorized absence, because she had failed to properly complete the FMLA form. The court found a violation of the law. The form should be fully completed for planned or foreseeable absence. However, “unforeseeable leave does not require employees to tell employers how much leave they need, if they do not know yet themselves.”

Gienapp v. Harbor Crest Nursing Home (7th Cir., 2014)

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

Latest News

California, board, corporate, directors

California Bill Would Mandate Racial Diversity on Corporate Boards

A recent California bill would mandate diversity in corporate boards for all companies headquartered within the state. The bill would ban all-white corporate boards and comes on the heels of a 2018 law that mandated women hold seats in all corporate boards. This racial diversity bill AB 979 defines “underrepresented…

Humana

Humana Reports Second Quarter 2020 Financial Results; Continues Proactive Relief Efforts Amid Pandemic

Originally posted on humana.com.  Ongoing actions to support its members, providers, employees, and communities during the COVID-19 pandemic, including the donation of an additional $150 million to the Humana Foundation to address social determinants of health in an effort to promote more healthy days and encourage greater health equity Reports…

BASF South East Asia joins ZDHC Foundation to Scale up Sustainability in the Leather, Textile, and Footwear Industry

Originally published on BASF.com BASF South East Asia now a “Contributor” in the Chemical Industry category of the ZDHC Foundation to help develop and implement chemical guidelines and solutions Haptex, BASF’s innovative polyurethane solution for synthetic leather, now certified ECO PASSPORT by OEKO-TEX® BASF South East Asia has joined the ZDHC…

AT&T Summer Camp

Originally published on ATT.com Welcome to AT&T Summer Camp For kids across the country, summer camp is something to look forward to all year long. It’s a time when they connect with friends, try new things, discover untapped talents and grow as individuals. This summer, we’re reimagining the summer camp…

Southern Company: Low-Income Natural Gas Customers to Receive $1 Million in Energy Assistance Support from Atlanta Gas Light

Originally published on southerncompany.com. Under a mechanism created by the Georgia Public Service Commission last year, Atlanta Gas Light is allocating $1 million for supplemental low-income energy assistance, which will be distributed to qualifying agencies that support customers who need help paying natural gas bills, repairing or replacing natural gas appliances…