Atlanta Employment Lawyer Blog

The Office of Personnel Management (OPM) has recently issued a memorandum requiring the federal government’s 24-hour leave without pay ((LWOP) family support policy be made available to federal employees’ same-sex domestic partners and their children.

In 1997, the 24-hour LWOP policy was established while changes to the Family and Medical Leave Act (FMLA) were being discussed. The FMLA allows eligible employees to take up to 12 weeks of unpaid leave annually for individual’s own serious health conditions, to care for a family member’s serious health condition or for the birth or care of a newborn or adopted child.

Recently, the Department of Labor broadened the FMLA to allow same sex partners leave rights to care for non-biological children when they act “in loco parentis.” However, the FMLA was not amended to include the 24-hour LWOP provision.

In order to address this provision and in furtherance of President Obama’s intention, the OPM requested that agencies permit federal employees in same sex domestic partnerships to take up to 24 hours of LWOP in a leave year for school and early childhood educational activities, routine family medical purposes, and elderly relatives’ health or care needs.

As stated in the memoranda, each agency “should analyze its existing policies and make revisions as appropriate, to incorporate language that will support Federal employees’ with same-sex domestic partners use of up to 24 hours LWOP each leave year to support the three activities.”

Although the FMLA’s scope has been broadened it remains an extremely complicated law with a number of detailed requirements, including strict time limits, complicated notice obligations and medical certification notices.

Continue reading " FMLA’s 24-Hour Leave Without Pay Policy Applies To Same Sex Domestic Partners " »

In late August, the U.S. Court of Appeals for the Seventh Circuit held that “one action” is sufficient to create a hostile work environment claim if it is sufficiently severe, especially uninvited, physical and intimate, bodily contact.

In Berry v. Chicago Transit Auth., Cynthia Berry sued the Chicago Transit Authority under Title VII of the 1964 Civil rights Act alleging sex discrimination and hostile environment harassment. At issue, an incident where Berry was playing cards with co-workers. She was asked to move to allow another employee to play, but refused to do so. A male co-worker then allegedly picked her up by her breasts and rubbed his body against hers before bringing her down to the ground forcefully and pushing her into a fence. When Berry complained to her manager, he responded that she was a “pain in the butt” and could lose her job if she filed a complaint.

In order to prove a case for sexual harassment, you must show that you have been subjected to unwelcome conduct that creates a hostile environment based on your sex that is sufficiently severe and pervasive to alter the terms and conditions of your employment.

Here, the federal trial court dismissed all claims. On appeal the 7th Circuit held that the dismissal was in error, explaining that the co-worker’s actions as alleged “qualify undeniably as unwelcome sexual conduct that establishes a hostile work environment.”

Further, because all inferences must be drawn in favor of the plaintiff, a reasonable fact finder could find that manager thwarted any legitimate investigation and a hence, the CTA was negligent – or worse – in responding to her report of harassment.

Continue reading " If Severe Enough, One Action Can Constitute A Hostile Environment " »

In one of the first summary judgment rulings under the amendments to the Americans with Disabilities Act (the “ADAAA”), the U.S. District Court for the Northern District of Indiana determined that an employee who has cancer is considered to be “disabled” even if the condition is in remission at the time of the alleged adverse employment action.

In Hoffman v. Carefirst of Fort Wayne Inc., d/b/a/ Advanced Healthcare, 13 months after Stephen J. “Sam” Hoffman, had surgery for stage III renal cancer, his employer demanded he increase his hours from 40 to 65 or 70 in order to meet client needs. Hoffman objected and produced a doctor’s note stating he was limited to working a 40-hour workweek. The company rejected his request to work fewer hours in his current location, and offered Hoffman a different job with a 2-3 hour commute. The arrangement was unacceptable and Hoffman never returned to work.

Hoffman sued under the ADAAA, claiming Advanced Healthcare failed to accommodate his disability and he was fired because he was disabled or regarded as disabled.

Although the ADAAA retains several key aspects of the ADA, it has also made some significant changes to the term “disability” and has expanded the ADA protections to include more individuals with less severe impairments. The ADAAA also provides, “the definition of disability in this Act shall be construed in favor of broad coverage …to the maximum extent permitted under the terms of the Act.”

Writing for the court, Judge Rudy Lozano reasoned that based on the stated purpose and language of the ADAAA, as well as interpretative regulations issued by the Equal Employment Opportunity Commission, cancer is a covered disability - regardless of whether it’s active or in remission. Further, a showing that cancer was substantially limiting Hoffman in a major life activity was unnecessary.

Continue reading " Cancer In Remission Considered A Disability Under The ADAAA In one " »

In a recent Second Circuit Court of Appeals decision, the court determined that a female could pursue a claim of gender discrimination based on sexual harassment and disparate treatment against Verizon Communications, Inc., pursuant to Title VII of the 1964 Civil Rights Act. The 2d Circuit reversed the lower court decision.

Although sexual harassment is one of the most well known forms of employment discrimination, it is also hard to define. It is not single instance of name calling, requesting a date or inappropriate touching. Rather, it is necessary to show that you’ve been subjected to unwelcome conduct that creates a hostile environment. This conduct must be so sufficiently severe and pervasive that it alters the terms and conditions of your employment.

In addition to sexual harassment claims, employees may bring sex discrimination charges where an employer takes adverse employment actions against you because of your sex. This includes failures to hire or promote, and disparate treatment concerning pay, disciplinary actions, suspensions and discharges.

In Pucino v. Verizon Commc’ns Inc., a female cable technician alleged that a male foreman repeatedly referred to her using an “intensely degrading epithet”” and that after she complained of discrimination, she found a large dead snake in her work truck. The technician also claimed that they assigned her less desirable work than male technicians, was required to work in unsafe locations, and the foremen ignored her requests for help. After complaining of disparate treatment, she was told to “get lost” or “go kill yourself.”

A unanimous appeals panel determined that based on these actions a reasonable jury could find that the alleged abuse was “sufficiently severe and pervasive” and that the disparate treatment regarding work assignments, discipline, and access to needed equipment was based on her sex. Further, the 2d Circuit held that although the use of derogatory gender-based verbal abuse may not automatically command an inference of gender based hostility, its repeated use along with other instances of abuse was sufficient to support the inference.

Continue reading " Verizon Technician Raises Triable Claim Of Sexual Harassment " »