Atlanta Employment Lawyer Blog

The U.S Court of Appeals for the Eighth Circuit recently determined that an emergency services dispatcher who had recurring depression could not maintain a claim under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA) after she was terminated for failing a fitness-for-duty examination.

The ADA prohibits discrimination against “qualified individuals with a disability.“ This includes those individuals with any medical, physiological, or psychiatric condition that substantially limits a major life activity. The ADA also protects certain individuals from discrimination based on an employer’s stereotypes and unfounded concerns about an individual’s medical condition and medical history.

In Wisbey v. Lincoln, Neb., the employee brought a “regarded as” claim, asserting that her employer mistakenly believed that an actual impairment – in this case her depression - substantially limited her ability to perform her essential job functions. Here, the court determined that no claim existed because the employee was terminated for a tangible reason – i.e. her psychiatrist had determined she couldn’t perform the essential work duties, including performing a public safety job requiring alertness and coolness under pressure - and she admitted that she needed leave because of her depression. As a result, the “regarded as” claim could not stand.

Conditions such as depression and other mental illnesses or are not always understood and may give rise to unfair treatment and adverse actions based on the assumption that an employee cannot handled specific job related duties or tasks.

If you are qualified for your job and suffer from any medical, physiological, or psychiatric condition that substantially limits a major life activity, and your employer discriminates against you, you may be able to file a claim under the ADA.

Continue reading "Employee Terminated Based On Depression Did Not Have Claim Under The ADA" »

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Posted In: Disability Discrimination

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Title VII of the Civil Rights Act of 1964 prohibits employment discrimination in the workplace on several bases including race, color, sex, national origin, and religion. Title VII laws apply to all private employers, state and local governments, employment agencies, labor organizations and the federal government if they employ at least 15 employees.

However, where religious employers are involved, the circuits are split.

In a recent decision involving the Roman Catholic Diocese of Tulsa, Oklahoma, the Tenth circuit determined that a woman’s duty’s as the director of the department of religious formation placed her squarely within the ministerial exception to federal employment discrimination laws. Applying the ministerial exception, as endorsed by the Tenth, Fifth, Ninth, and District of Columbia, a church employee’s hostile environment claim improperly entangles of church and federal law. As a result, these circuits have held that not only are religious employers shielded from hostile environment claims, but all forms of discrimination under Title VII, including equal pay and age discrimination.

Although the ministerial exception typically applies to ministers, the exception covers any employee shown to be important to a church’s “spiritual and pastoral mission.”

This decision is at odds with the Ninth Circuit’s holding in a previous case, Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) that a minister’s hostile environment claims against a church may be viable “so log as the church does not claim ‘doctrinal reasons for tolerating of failing to stop the [alleged] sexual harassment.”

The interplay between church tenets and federal sexual discrimination laws continues to evolve, with differences from circuit to circuit – even amongst the courts within a circuit.

Continue reading "Ministerial Exception Applies to All Title VII Claims" »

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Posted In: Discrimination

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As the population ages, and the economy continues to languish, more and more older Americans are putting off retirement and continuing to remain in the workplace. While many of these individuals offer long records of experience and maturity, companies often overlook hiring or promoting older employees in favor of their younger counterparts. As a result, age discrimination has become one of the fastest growing types of employment discrimination.

In a recent case, a 68-year-old attorney who was denied a job at a software firm filed a claim under the Age Discrimination in Employment Act (ADEA) asserting that he was “clearly better qualified” than the “substantially younger” applicant.

Similar to other anti-discrimination laws, the ADEA prohibits adverse employment actions against you on the basis of age – including decisions regarding hiring and firing – and protects you from harassment based on your age.

In Moss v. BMC Software, Inc., a company hired a substantially younger candidate explaining that although the older candidate – Moss - had more extensive legal experience, the successful candidate had greater familiarity and expertise with specific transactions that formed the majority of the job. Moss asserted that the company’s reasons for hiring the younger candidate were mere pretense and that and his age was a “motivating factor” in the company’s decision not to hire him. The U.S. Court of Appeals for the Fifth Circuit rejected these arguments and granted the company’s motion for summary judgment, noting that the “motivating factor” standard is not applicable to ADEA cases. Unlike Title VII discrimination, under the ADEA plaintiffs must prove age was a “but for” cause of an adverse employment action.

In granting the summary judgment motion, the court stated that the employee failed to show direct discrimination and would not “second-guess’’ the company’s business judgment about which job qualifications were most essential.

Although age may be a factor considered in an employer’s decision -making process, it cannot be the only one.

Continue reading "Court Rejects Argument Of Age Bias" »

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Posted In: Age Discrimination

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At the end of its 2009-2010 term, the U.S. Supreme Court agreed to review the circumstances under which a third party may bring an action for retaliation. Specifically, the Court has agreed to review whether a worker may bring a suit for retaliation based on his fiancée’s filing of a sex discrimination claim against their mutual employer.

In Thompson v. N. Am. Stainless LP, an employee, Eric Thomson, was terminated three weeks after the company became aware of his fiancée’s sex discrimination claim against them.

Title VII prohibits retaliation as the result of a complaint about certain types of discrimination in the workplace, either directed at you or a fellow employee. Retaliation includes not only being fired, but also almost any negative action by your employer against you in response to a complaint about discrimination or acting as a witness in someone else’s case.

In Thompson, the Sixth Circuit determined that the employee’s status as the fiancé of an individual who filed a discrimination charge was not sufficient to pursue a claim of retaliation because he had not personally engaged in a protected activity.

Although the Justice Department recommended that the court deny review, the Supreme Court accepted the case and will hear oral argument when the new term begins.

In recent years, the Supreme Court has ruled favorably on retaliation claims, finding that an employer may be liable under Title VII for actions that would dissuade a reasonable employee from making or assisting with a discrimination complaint. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Continue reading "Can A Fiancé Bring A Third Party Retaliation Claim?" »

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Posted In: Retaliation

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In a victory for non-traditional families, the Department of Labor, Wage and Hour Division has recently issued a clarification of what the terms “son” and “daughter” mean with the effect of broadening who is entitled to leave under the Family and Medical Leave Act (FMLA).

Under the FMLA, an employee is entitled to 12 weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The FMLA’s definition of “son or daughter” includes not only a biological or adopted child, but also a foster child, a step-child, a legal ward, or a child of a person standing in loco parentis.

Pursuant to the recent clarification, anyone who assumes the role of caring for a child regardless of the legal or biological relationship may be considered as acting “in loco parentis,” and entitled to leave. This includes same sex partners, unmarried partners, grandparents and extended family members.

In reaching this determination, the DOL reasoned that it was Congress’ intention to grant leave to employees who have day-to-day responsibilities caring for a child even if the employee does not have a biological or legal relationship to that child.

The DOL also relied on case law that provides a variety of factors used to determine whether an employee stands in loco parentis, including:

• Age of child
• Degree child is dependent on person claiming in loco parentis status
• Amount of financial support
• The extent duties associated with parenthood are exercised

Labor Secretary Hilda Solis stated “No one who loves and nurtures and child day-in and day-out should be unable to care for that child when he or she falls ill…No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”

Continue reading "Family Leave Rights Apply To Domestic Partners" »

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Posted In: FMLA

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Actions constituting sexual harassment or those that create a hostile work environment can take many forms such as lewd comments, inappropriate touching, and sexually explicit joke telling. Despite the sexual nature of the harassment – actual sexual desire or attraction need not exist to support an inference of sexual discrimination.

In a recent sexual harassment case, Rosario v. Dep’t of Army, the U.S. Court of Appeals for the First Circuit court ruled that the lower court’s focus on whether a sexual attraction between the harasser and the employee existed was misdirected. Citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the court noted that no requirement exists that the hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. Rather, circumstantial evidence showing a hostile work environment is sufficient.

In Rosario, the supervisor’s actions in commenting on an employee’s body and underwear everyday, calling co-workers’ attention to her body and underwear and repeating sexually oriented jokes could create an inference that the superior’s behavior was improperly motivated by gender. As a result, the Court held that a reasonable jury could find that the employee was exposed to harassment that differed in both kind and degree from that imposed on male employees.

Here, the supervisor created a work environment that ultimately harmed a female employee’s emotional stability and health. Whether the supervisor had a crush or was attracted to the employee was irrelevant to the existence of a hostile environment.

Continue reading "Sexual Attraction Not Necessary For Harassment Claim" »

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Posted In: Sexual Harassment

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The Americans with Disabilities Act (ADA), provides that disability discrimination is illegal. Specifically, the ADA prohibits discrimination against “qualified individuals with a disability” regarding terms and conditions of employment, retaliation against employees who complain about discrimination, or participating in someone else’s discrimination lawsuit.

Whether someone is considered a “qualified individual with a disability” is a legal definition and depends on whether you have a condition that substantially limits a major life activity. If you fall within this definition, then the ADA requires that your employer make an effort to “reasonably accommodate your disability.” This may be some simple such as changing your start time or providing an alternate workspace. An employer is not required to make all requested accommodations, only those that are reasonable, i.e. – they are not required to make changes that are excessive or burdensome.

Whether specific accommodations are considered reasonable is determined on a case-by-case basis.

In EEOC v. Hibbing Taconite Co., the U.S. District Court for the District of Minnesota reviewed whether a mining company was required to make reasonable accommodations so that a hearing-impaired applicant – James Edstrom - could obtain a job at an open pit mine. The mining company asserted that it failed to hire Edstrom because he could not perform the essential functions of working at the mine as a result of his hearing impairment and inability to use a workplace radio.

In response, Edstrom provided evidence of accommodations made for him at past mine jobs that allowed for adequate communication and a safe environment. These accommodations included the use of radio, hand signals, eye contact, horn use, and written contact. The court determined that a triable issue of fact existed, and denied the employer’s motion for summary judgment. The court reasoned that a jury could find that these forms of communication, along with texting, constituted “reasonable accommodations” required under the ADA.

Continue reading "Alternative Modes Of Communication May Be Considered A Reasonable Accommodation" »

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In May a federal jury awarded a Muslim Egyptian-born man over $3.6 million, as the result of severe religious and race discrimination that forced him to resign from his job at the University of Texas Southwestern Medical Center.

In the post-9/11 climate, anti-immigrant sentiment has increased, often taking the form of religious, national origin, or race discrimination. Title VII specifically protects these classes and prohibits your employer from taking adverse action against you because of your race or color, ethnic background, or religious beliefs. If you complain of these types of discrimination or harassment, companies are prohibited from retaliating against you. Often these types of discrimination are intertwined.

In Nassar v. Univ. of Tex. Sw. Med. Ctr., a jury found that the hospital “constructively discharged" Nassar because of his race, national origin and religious preference. The jury also held that the hospital had retaliated against him in violation of Title VII. Specific discriminatory actions included derogatory comments, and failures/delays in promotion. After Nassar was offered a new job, the hospital contacted the new employer and informed it about Nassar’s EEOC complaint, and recommended Nassar not be hired. Based on the UTSW’s actions, Nassar’s employment offer was rescinded.

Unfortunately, in recent years anti-immigrant discrimination in the work place has proliferated. Often discriminatory actions manifest themselves subtly – such as English only rules and dress codes. Discrimination may also occur in how you are allowed to practice your religion.

Continue reading "Jury Finds Medical Center Discriminated Against Muslim Doctor " »

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Posted In: Race Discrimination , Religious Discrimination

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In a recent sexual harassment case, an administrative assistant asserted that her company’s response to her complaints of sexual harassment under Title VII of the 1964 Civil Rights Act created a hostile work environment. The U.S. District Court for the Eastern District of Pennsylvania disagreed.

In Sheer v. Motorola Inc., E.D. Pa., No. 09-209, an administrative assistant became friendly with an engineer at Motorola, exchanging social emails and gifts. The relationship started to decline and the engineer made increasingly sexual and threatening comments. After the administrative assistant complained to Motorola, the engineer was investigated, formally punished and had his duties diminished.
The administrative assistant claimed she was treated differently by co-workers after the complaint, and she subsequently lost her job a year later after a reduction in force. She then filed a lawsuit alleging violations of Title VII as a result of a hostile work environment and retaliation.

Here, Motorola’s response to the assistant’s claim was in question. After the administrative assistant complained, Motorola assembled a security team to investigate, told her to work from home, and provided her with safety advice.
The court concluded that rather than being discriminatory, these actions show that company took the woman’s complaint seriously and invested significant time and resources to resolving the matter quickly and effectively. The court also stated that if they found the company’s actions to assist the woman created a “hostile work environment” employers would be on a ‘razor’s edge’ for fear of liability for investigating too thoroughly or not investigating at all.

The court also determined that the fact that her job was eliminated nearly one year after the woman complained was not sufficient to show retaliation.

If you believe you have been subject to sexual harassment, the first thing to do is seek legal advice. Often the employer will have a policy that requires you to report the harassment to someone in authority. If you fail to do so, you risk losing your right to pursue a sexual harassment claim if the conduct persists. Here, the company responded and took actions to investigate the complaints of harassment. Often, that’s not the case. Many times when an employee complains of harassment, the employer does nothing. In situations where a company fails to respond to a complaint, you have the right to file a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates all claims of employment discrimination. The EEOC will then investigate the charge and require your employer to investigate.

Continue reading "Security Response Does Not Create Hostile Work Environment" »

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The U.S. Supreme Court has ruled that black firefighters did not miss the deadline to file a cause of action for race discrimination against the City of Chicago, holding that reliance on a discriminatory test administered in the past can constitute a new violation of Title VII.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating on the basis of race. Race discrimination often occurs through facially “neutral” practices that have the effect of screening out minority applicants and employees, such as employment tests, appearance and dress codes, English-only rules.

At issue in Lewis v. City of Chicago was a written employment test administered to more than 26,000 firefighter applicants. The City of Chicago stated that everyone who scored above a 65 on the test was qualified, but would only hire those who were “well qualified” – i.e. those individuals who scored an 89 or better.

The firefighters brought a lawsuit under Title VII for race discrimination based on a disparate impact theory, i.e. that they were denied jobs as the result of a flawed employment test. In order to fall within the 300-day deadline to file a claim, the firefighters asserted that each time the fire department relied on the test to make a hiring decision a separate act of discrimination occurred, and hence constituted a “continuing violation.”

The trial court agreed and held that the score of 89 was statistically meaningless and had a “severe disparate impact against African-Americans.” The appeals court reversed.

On Monday, the U.S. Supreme Court reversed the appellate court decision. Writing for the majority, Justice Scalia stated that each use of a forbidden employment practice gave rise to a separate claim of discrimination. He distinguished between disparate impact and disparate treatment claims, noting that for disparate impact claims deliberate discrimination need not be shown within the limitations period. Although Scalia acknowledged this decision might allow suits for long-established practices, ruling otherwise would allow employers to use “an unlawful practice with impunity.”

Continue reading "Supreme Court Finds Black Firefighters’ Race Discrimination Claim Timely" »

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Posted In: Race Discrimination

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As the number of older Americans in the work place continues to increase, so does the number of Americans facing age discrimination at work. If you are over 40, the Age Discrimination in Employment Act (ADEA) prohibits your employer from discriminating against you and protects you from harassment based on your age.

Often, discrimination occurs when one company merges with another, or goes through a reduction in force (“RIF’) and evaluates which employees to retain or terminate. If the employee’s age is used to determine whether someone should be laid off, the employee may have a claim for age discrimination.

A recent case determined that when one company buys-out another, claims based on age discrimination survive. In Phair v. New Page Corp., a 55-year-old employee – David Phair – was fired after his employer was purchased by another company. In advising the new company regarding whom to retain and whom to eliminate, the managers of the former employer raised concerns about the age of some employees and offered anecdotal evidence about who might be a good fit. Without a comprehensive review of any employee personnel files or performance reviews, Phair was offered a temporary position involving significant travel. He declined this position and was fired. An additional 4 employees, all older than 40, were terminated as well.

Several factors affected the court’s determination that Phair could maintain a cause of action against the companies. First, the District Court found that although Phair’s offered transfer was lateral, it could be considered an “adverse employment action” because it involved switching from a full time position without travel to one involving extensive travel. Further, Phair was replaced with an employee 4 years, 9 months younger than him. Because authority is split on whether this constitutes a “substantial age difference,” the court determined that an age difference close to 5 years was sufficient to raise an inference of age bias. Finally, the court held that discriminatory comments such as concern over the “aging workforce” and the fact that statistically older workers were overrepresented in the group of employees let go was sufficient to create a triable issue on whether age was a “but for” factor in Phair’s termination.

Continue reading "Age Discrimination Claim Allowed To Proceed After Company Buy-Out" »

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Posted In: Age Discrimination

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Many times job applications contain “legalese” – language that may waive a right or in someway limit an employee’s path to recovery. However, according to the U.S. Court of Appeals for the Sixth Circuit, provisions contained in a job application which limit an individual’s legal remedies may not be enforceable if the applicant did not knowingly or voluntarily waive those rights.

In Alonso v. Huron Valley Ambulance Co., the 6th Circuit Court of Appeals reviewed job applications signed by a married couple – Alan and Kimberly Alonso - seeking positions as paramedics with an ambulance company. Included on the forms were clauses providing that employees must submit any employment disputes to a grievance review board, including discrimination and contract issues. The forms also stated that candidates hired by the company could not commence any employment related action or legal proceeding for more than six months after the employment relationship ended and required the candidate to “waive any statute of limitation as to the contrary.”

The Alonsos signed these forms and were hired.

At an orientation meeting over a month later, the Alonsos received company manuals detailing an elaborate grievance procedure, including a provision that any dispute “arising out of or in connection with” employment, including civil rights, tort and contract claims “shall be exclusively subject to review by the Grievance Review Board” and any decision reached by the board would be binding.

In 2007, Alan joined the Army National Guard. Shortly thereafter Alan was fired for allegedly making false claims of being absent from work due to military duty and testing positive for a prescribed medication. Alan protested his firing, but the grievance board upheld the termination. Alan then sued in federal court claiming retaliation, as well as being terminated in violation of USERRA.

Kimberly joined the action as well, with allegations of sexual harassment, discrimination and retaliation.

Continue reading "Sixth Circuit Determines Couple Did Not Knowingly Waive Their Right To Sue" »

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Posted In: General

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