Workplace Diversity: Is Hiring Only Gay Men Unfair

Workplace diversity challenged by reverse discrimination A shipping company lost a $1-million verdict after a manager only wanted to hire gay men. What can you learn


Discrimination: Gender, Transgender and Sexual Orientation

Company accused of hiring only gay men loses $1-million verdict.Three women filed a discrimination charge against a shipping company, alleging that the company only hired gay men for station-manager jobs. When the gay, male manager of one location left, the assistant, also a gay man, was logically made acting manager. He stated his interest in being appointed as the regular station manager. However, the company refused to even accept his application for the opening. He was told he would not be considered because the company was “in a boiling pot of water” because of the three women’s complaints.

A senior manager told others that the company “needed to clean house” of gay people. Under the Maine Human Rights Act, a jury awarded more than $1 million in damages plus attorney fees for discriminatory denial of the promotional opportunity inRussel v. Express Jet Airlines, Inc.(Maine S.Ct., 2011). The warning in this case is about overreaction. Do not react to one discrimination case by then discriminating in another direction. Adopt validated, sound practices in general.

For more on hiring best practices, watch ourrecruitment web seminar, featuring staffing leaders from AT&T and Toyota Motor Sales, and read Diversity Training Goes Way Beyond Compliance.

Georgia legislature could not fire transgender state employee.The 14th Amendment Equal Protection Clause covers discrimination on the basis ofsexual orientation and transgenderby government employers (unlike Title VII, which does not cover these issues). When the editor of a Georgia General Assembly publication began a transition from male to female, the legislative council manager initiated a discharge. The manager stated that thesex reassignmentwould be “inappropriate” and “disruptive” and some coworkers would have a “moral issue and feel uncomfortable.” In the resulting case, the court found clear discrimination based on transgender and gender stereotyping.Glenn v. Brumby(11th Cir., 2011).

For more on LGBT best practices, read Our Analysis of the HRC’s Corporate Equality IndexandAsk DiversityInc: How Can Corporations Support Same-Sex Marriage

Discrimination: Age

$17.7 million to older drivers.A jury found that a soda-bottling company engaged in a deliberate plan to rid itself of older truck and forklift drivers by artificially lowering performance evaluations and assigning harder work designed to cause injury or motivate them to resign. Evidence included a “manager claiming he was required to discriminate against older drivers,” comments by a senior manager referring to facilities witholder workersas “retirement communities” in need of “new blood,” and the non-responsiveness of human resources to complaints made by the older workers. Seven plaintiffs received the award, including $1 million each for pain and suffering and up to $2 million each in punitive damages inWard v. Cadbury Schweppes Bottling Group(C.D. Cal., 2011). The awards were under California’s antidiscrimination laws and are not subject to the liability caps of the federal Age Discrimination in Employment Act.

For more on generational communications in the workplace, readAsk DiversityInc: How Can We Start Resource Groups Based on Generations, Disabilitiesand watch our resource groups webinar.

Discrimination: Disability

Injured vet gets job, but not millions. An injured Iraq war veteran won a jury verdict of $4.4 million because of discrimination. The defendant was, of all entities, the Department of the Army. The plaintiff lost his right hand, part of a lung and an eye while defusing a roadside bomb. On return from duty, he had a civilian job at the Detroit Arsenal. His supervisor and some coworkers were derogatory of his disability, calling him “cripple,” “lefty” and other names. When he objected, the supervisor said, “If you don’t like the way you are treated, go find another job.” He left, sued for constructive discharge and won. The award included $4.4 million in “front pay.” An appeals court modified the verdict. It held that reinstatement to a joba higher-paying job under different supervisorswas the proper remedy, and not front pay. At age 38, it was unfeasible that he needed an entire life’s worth of pay, as if he would never be able to find another source of income, which is what front pay is supposed to compensate. McKelvey v. Army (6th Cir., 2011).

For more best practices on hiring and developing veteran talent, readVeterans in the Workplace: How to Help Them Succeedand watch our veterans web seminar.

Hotel kitchen worker loses ADA case; would have won ADAAA case. The pre-amendment ADA cases are gradually coming to an end, while cases under the ADA Amendments Act are coming to the fore. This case is an illustration of why the ADA was amended. In Ramos-Echeverra v. Pichis, Inc. (1st Cir., 2011), a hotel kitchen worker’s epilepsy caused up to 16 seizures a week. However, this rarely interfered with work and never caused a serious performance or safety issue. Management, however, denied him full-time hours. He sued under the ADA. The court dismissed, ruling that even with 16 seizures a week, he was not “disabled” because he could still do work and most life activities. The ADAAA was passed specifically because the courts were making restrictive rulings about the definition of disability. It changed the definition of disability. The employee’s history of epilepsy and number of seizures would clearly be a disability now, and the case would proceed.

Court rules for deceased employee: morbid obesity is a disability. The EEOC pursued a disability case on behalf of a person fired from a residential care facility because her morbid obesity allegedly interfered with her work. During the course of the case, the plaintiff died because of complications of obesity. The court allowed the EEOC to continue the case on behalf of the employee’s estate and under the EEOC’s authority to address discrimination regardless of the presence of an individual plaintiff. Then the court ruled that morbid obesity itself can be a disability. Prior decisions have emphasized that there should be some other medical conditions that contribute to the obesity. Thus, those other conditions are the disabilities, and obesity is an effect. Now, this court found no other physiological impairments need be present; the obesity alone is a disability. EEOC v. Resources for Human Development, Inc. (E.D. La., 2011).

ReadObesityIs aDisability,Says EEOCfor more on hiring workers with disabilities and EEOC regulations.

Discrimination: Religion

Non-Amish worker can pursue discharge case. In McIntire v. Keystone RV Co. (E.D. Penn., 2011), the court found sufficient evidence to validate an ex-employee’s religious-discrimination case. The plaintiff alleged that he took a job at an Amish-owned company, and then a new manager began a practice of replacing non-Amish workers with Amish. The plaintiff was then replaced. The company tried to argue that being “non-Amish” is not a protected category under Title VII; one must be discriminated against because of one’s religionnot one’s non-religion. The court rejected this argument. Title VII protects a person because of their religion and also protects against discrimination because one does not hold the same beliefs as the employer. Religion should play no role either way in private-sector employment decisions.

For more on religious issues, readReligious Discrimination in the Workplace.

Discrimination: Race

Stick to one story. A Black welder gave two different versions for leaving his employment, in two different cases: personal injury and Title VII discrimination. In the Title VII case, the employee claimed he was constructively discharged; he had to quit because of racial harassment by coworkers and supervisors knew it, and that was the only reason he left. Prior to resigning, the welder had been injured in an off-work car accident. He sued the other driver. In that case, he claimed he had been forced to quit work because of the injury, claiming “I’m in pain all the time.” He claimed the only reason he had to quit work was because of the injury and “my supervisors knew this is why I had to quit.” It appeared he was telling whatever story was most convenient to get the most damages in either casedouble-dipping. Evidence of the testimony in the personal-injury case came to light in the Title VII case. The court dismissed the discrimination case based upon dishonesty. Brown v. Oil States Skagit Smatco (5th Cir., 2011).

Watch our mentoring webinar for best practices on retaining and developing Black, Latino, Asian and women talent.

Family and Medical Leave Act

Prenatal appointments qualify for FMLA, and company should have known better than to threaten discharge. Pregnancy itself is defined as a serious medical condition under the FMLA. In Dean v. Wackenhut Corp. (N.D. Ill., 2011), an employee requested FMLA for prenatal-care appointments. She made the request 20 days in advance. The company denied leave, on the basis that the appointment was “merely an initial examination and not medically necessary.” Then the company told her that she would be fired for no call-no show if she did go to the appointment. The employee pleaded for the ability to go to the appointments. In response, she was told that she “should not use pregnancy as a crutch pregnancy is not an illness.” She sued for interference with FMLA rights. The court granted summary judgment in her favor. The violation was so clear cut that damages could be awarded without need of a trial. The decision called the employer’s actions “misguided and unfounded” and held that by denying leave and “by attempting to scare her into not taking the time off by threatening disciplinary actionindeed, discharge,” Wackenhut deprived her of her rights under the FMLA as a matter of law.

University denies intermittent leave for adoption. FMLA covers leave for birth, adoption or placement of a foster child. A university employee requested intermittent leave to care for a newly adopted child. The university denied the leave. She sued for interference with FMLA rights. The court granted summary judgment, dismissing the case. FMLA leave for serious medical conditions of employees or family members can be taken in short, intermittent periods. The new-child leave provision is different. It allows the employer the discretion to grant intermittent leave or deny it and force the leave to be taken all at one time. The employee had not made any claim about a serious health condition, so the university could validly deny intermittent leave. DeLuca v. Trustees of the University of Pennsylvania (E.D. Penn., 2011).

ReadFMLA: What Employers Need to Knowfor more insights on FMLA regulations.

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

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