Atlanta Employment Lawyer Blog

Although many people think sex discrimination is a thing of the past, it is unfortunately alive and well – affecting women from all walks of life in all types of jobs. Studies show that women still are not paid equally to men, may be passed over for promotions and subject to harassment.

Fortunately Title VII of the Civil Rights Act, 1964 prohibits sex discrimination based on an employee’s sex – either female or male. This means that an employer cannot take adverse employment actions against you because of your sex. Similarly, the Equal Pay Act requires women and men be paid equal amounts for equal work.

In a class action lawsuit arising out of gender discrimination, a federal trial court has recently approved a $32 million settlement. In Carter v. Wells Fargo Advisors, a group of more than 3000 female current or former financial advisers sued Wells Fargo for workplace sex bias. Included in the discriminatory actions were bias in work assignments, distribution of accounts, opportunities for advancement, assignment of partnerships and teams and other terms and conditions of employment.

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The Americans with Disabilities Act (ADA) and the Americans with Disabilities Amendments Act (ADAAA) provide basic protections making disability discrimination illegal. The ADA prohibits discrimination against qualified individuals with a disability in the terms and conditions of employment, with one of the Act’s main protections requiring employers to “reasonably accommodate” an employee’s disability. To “reasonably accommodate” a disability means that an employer must take those reasonable steps that may allow you to do your job, despite your disability. The ADAAA, which recently became effective, further defines who may be considered “disabled” and subject to “reasonable accommodations.”

Earlier this month, the Equal Employment Opportunity Commission (EEOC) held ADAAA reasonable accommodation hearings in an effort to provide more specific guidance to employers and workers regarding just what may be considered a “reasonable accommodation,” but noted, “there are no blanket answers to these questions.”

One of the main issues raised included flexible leave policies, which allow employees to have leave extensions based on their individual circumstances. In many cases, an employee is not ready to return to work when their approved leave ends. Two recent cases were settled against employers who automatically fired disabled workers who weren’t ready to return to work when their leave was up. The EEOC noted that an “inflexible period of leave” is risky for employers, and is likely insufficient to satisfy appropriate leave.

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A recent opinion by the Second Circuit Court of Appeals found that a 59-year-old man who was fired by a car dealership and replaced by a younger man could maintain a claim for age discrimination. The worker presented evidence that he was subjected to ageist jokes by the company’s president and was replaced by a man more than 20 years younger.

In O’Reilly v. Marina Dodge, Inc., an auto dealership asserted that it fired the older employee, Terrence O’Reilly, because he was “disorganized and lackadaisical in his performance, was resistant to new initiatives, and had a poor attitude.” While these stated reasons may be legitimate, if the person alleging discrimination can show that those reasons are really “pretext” or excuses for taking unlawful discriminatory actions, he or she may be able to maintain a lawsuit.

Here O’Reilly faced numerous ageist comments from the company president and other employees such as whether he remembered his customer’s name or his way home. The court found that evidence of the jokes, along with glowing letters of recommendation, positive performance evaluations and cash bonuses were sufficient to create a question for the jury whether he had been subject to age discrimination.

The court also found that a reasonable jury could find that the auto dealership was relying on stereotypes of older people when they teased O’Reilly and that his resistance to “new initiatives” was a cover for the company’s desire to hire a younger employee based on its “unfounded assumption that a younger employee would better implement ‘new initiatives’ than an older employee.”

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A group of black firefighters has won their battle for relief in a long-standing dispute over the discriminatory impact of a screening test. The City of Chicago’s 1995 firefighter exam ranked applicants as highly qualified, qualified, or not qualified based on the results of the test. When it was time to hire applicants, only those people ranked as highly qualified were selected. The impact of the test discriminated against qualified black applicants.

Employment discrimination, including race discrimination, may be direct – such as refusing to hire someone because of their race - or it can be more subtle – such as screening practices that reduce minority applicants and employees such as job and intelligence tests, dress codes and English-only rules.

Here, a class action lawsuit was filed on behalf of the qualified black applicants alleging that the test had a discriminatory impact. The city conceded that the cut-off had a racially discriminatory impact, and the Supreme Court found that no legitimate “business necessity” required the cut-off. As a result, each time the test was used to determine which applicant’s to hire, a new race discrimination claim was created.

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