Atlanta Employment Lawyer Blog

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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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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