Atlanta Employment Lawyer Blog

A man who was fired one day after telling his supervisor he was HIV positive may bring a claim for employment discrimination and impermissible medical inquiry claims under the amended Americans with Disabilities Act. In Horgan v. Simmons, the U.S. District Court for the Northern District of Illinois determined HIV falls within the new definition of “disability” as set forth under the amendments.

Not all illnesses or injuries are covered by the ADA. The ADA only protects “qualified individuals.” Qualified individuals are those with any medical, physiological, or psychiatric condition that substantially limits a major life activity.

In Horgan, the Illinois District Court evaluated whether HIV constitutes a covered disability. Writing for the court, Judge Ruben Castillo held that it is, reasoning that HIV falls within the category of being an “episodic or in remission” that “substantially limits a major life activity when active.” The court further noted that the operation of ‘major bodily functions,’ including an individual’s immune system are considered “major life activities” for the purpose of defining an actual disability under the ADA.

In addition to determining whether HIV was a covered disability, the court also reviewed whether facts exists showing that the president of the company improperly inquired into Horgan’s medical status after he told Horgan he was “really worried about him” and needed to know if “there was something medical going on.”
After persistent questioning, Horgan revealed his prognosis, but indicated that it did not affect his ability to work and be productive. However, the company president continued to ask questions about his condition. Horgan was told that he “should go on vacation” and “leave the plant immediately.” The president also sent out an email stating effective immediately Horgan was no longer a member of the company.

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Posted In: Disability Discrimination

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On April 21st, the U.S. Supreme Court unanimously reaffirmed the 11th Circuit Court of Appeals' decision that reasonable attorney fee awards may include enhancements for superior performance under a federal fee-shifting statute in civil rights cases. (Perdue v. Kenny A., U.S. No. http://08-970, 4/21/10). However, the enhancement may only be allowed in “extraordinary circumstances.”

The issue of when an enhancement may be allowed was raised in a civil rights class action brought on behalf of foster children throughout Fulton County and DeKalb County, Georgia by private attorneys and non-profit children’s rights advocacy groups alleging that the State’s foster case system violated 42 U.S.C. Sec. 1983, as well as other state and federal laws. After 3 years of extensive motion and discovery work, both sides resolved the issue through mediation, entering into a consent decree aimed at implementing sweeping reforms.

As part of the decree, plaintiffs’ attorneys were entitled to fees pursuant to 42 U.S.C. Sec. 1988. Fees allowed under Sec. 1988 are subject to the same standards as those allowed pursuant to federal employment discrimination and wage/hour statutes.

The fees were determined by a lodestar figure (reasonable hourly rate multiplied by hours worked). The lodestar figure was then enhanced by a factor of 1.75 based on the plaintiffs’ attorney’s quality of work – which the district court noted, “far exceeded what the foster children could have received in the private market” and the exceptional results achieved.

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Posted In: Discrimination

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When Congress returns from its April recess, several significant employment and labor related issues will be addressed. These include legislation prohibiting job discrimination based on sexual orientation and gender identity, fair pay and paid sick leave under the Family Medical Leave Act (FMLA).

Under current law, Title VII prohibits employment discrimination on the basis of any protected category. This means that any private employers, state and local government, employment agencies, labor organizations or federal government who employs more than 15 employees cannot discriminate against you regarding almost any employment matter – including hiring, firing and discipline.

Senate bill 1584 and H.R. 3017,the Employment Non-Discrimination Act, seek to extend the protections already in place for race, religion, gender, national origin, age and disability to “gender identity.”

The Legislation defines “gender identity” as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designation at birth.”

Other legislation being considered includes the Paycheck Fairness Act (S. 182, H.R. 12) which seeks to amend the Equal Pay Act to create greater consequences for sex discrimination regarding wages. These include non-retaliation requirements, as well as increasing penalties and providing for compensatory and punitive damages where violations occur.

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Posted In: Discrimination , FMLA

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The U.S. Court of Appeals for the Fourth Circuit has recently held that under South Carolina law, an assistant manager constituted a “supervisor” for purposes of bringing a sexual harassment claim.

In Whitten v. Fred’s Inc., 4th Cir., No. 09-1265, 4/1/10, the 4th Circuit held that the test to determine whether a harasser is a supervisor is whether the “complained-of conduct was ‘aided by’ the agency relationship between the alleged harasser and employer” and not simply whether the harasser had the power to take “tangible employment action” against the complainant, as determined by the lower court.

In Whitten, the victim was subjected to name calling by the store manager and told that in order to have long weekends off, she needed to “be good to [him] and give [him] what he wanted.“ The store manager also touched her inappropriately and made her stay late and denied work days off when she failed too respond to his overtures.

The victim then complained to the store operations and district managers but was told she was overreacting. She then resigned, feeling it was her only option.

In order to support a claim of sexual harassment, the victim must prove either a hostile work environment or an abusive work environment. Since the victim was only employed 2 days, the court determined that in order for a claim for sexual harassment to stand, she must prove an abusive work environment.

In order to show an abusive work environment, the victim must be able to impute liability to the employer for the conduct of its store manager. Although the lower court determined that the store manager was not a “supervisor” and thus, the company was not liable for his actions, the 4th Circuit disagreed, reasoning that a harasser can be considered a victim’s supervisor (thus rendering the employer suspect to vicarious liability) even without the power to hire, fire or discipline. If the harasser can assign work hours and make the victim work extra hours or an inconvenient schedule as punishment for not giving into to sexual demands, he is using the authority granted by the employer to perpetrate the harassment and may be liable for the harassment.

However, even if the victim is able to establish a claim for sexual harassment, the employer may be able to dismiss the case on summary judgment using the Faragher/Ellerth affirmative defense to liability for supervisory harassment. The Faragher/Ellerth affirmative defense provides that an employer may avoid liability if it can demonstrate that it took “reasonable care to prevent and correct promptly any harassing behavior” and the victim “unreasonably failed to take advantage” of preventative opportunities.

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Posted In: Hostile Work Environment

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In a surprise decision, the 11th circuit has decided to rehear a claim for alleged sexual harassment and retaliation. Corbitt v. Home Depot involves two men who claim that a male human resources manager made unwanted sexual advances toward the men. When they complained, the men were allegedly fired in retaliation.

Last August the 11th Circuit Court of Appeals, which encompasses Georgia, determined that the men’s claims of sexual harassment were not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

The specific actions complained of included unwanted sexual advances, inappropriate comments over the phone and in person, massages and suggestive comments. They also allege that the human resources manager rubbed up against them when they hugged.

The 11th Circuit issued a revised opinion in December, confirming the dismissal of the sexual harassment claims. However, the retaliation claims were not dismissed.
In March, the court issued an order vacating its previous opinion and requesting an en banc hearing,

Although its impossible to know what the ultimate outcome will be, it seems likely that some of the initial holding will be reversed or modified, and possibly change what constitutes sexual harassment in the 11th circuit. If the dismissal is reversed, the men will be allowed to proceed with their lawsuit.

In the 11th Circuit, in order to prove sexual harassment, you must show that you have been subject to unwelcome conduct that is “sufficiently severe and pervasive” to alter the terms and conditions of your employment.

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Posted In: Hostile Work Environment , Sexual Harassment

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