Atlanta Employment Lawyer Blog

Under several circumstances federal law requires that your employer allow you to take approved leave. These include taking leave to care for a new baby or a family member with a serious health condition. Additionally, if you have a serious health condition the Family and Medical Leave Act (FMLA) provides that employers must allow eligible employees to take up to 12 weeks unpaid leave.

Although some limitations exist before you may be eligible, once you meet the requirements for leave the FMLA protects you in certain ways, such as requiring an employer to restore you to your job at the same rate of pay and same benefits as before the leave.

In a recent case out of Ohio, the Sixth Circuit Court of Appeals determined that an employer had interfered with a worker’s leave and required the employer to pay double damages to a fired worker. In Thom v. American Standard, Inc. the 6th Circuit reviewed whether American Standard violated a molder’s rights when the company terminated the worker while he was on leave for shoulder surgery and before he was scheduled to return to work.

If you have questions concerning your right to take leave, or if you believe your employer interfered with your leave rights, it is important to consult with an experienced employment discrimination attorney in Atlanta to review your circumstance and determine your next steps.

Here, the company amended its FMLA policy but did not inform it’s employees of the changes. When the employee, Carl Thom, requested leave it did not let him know that the amount of leave requested would exceeed the amount of time allowed pursuant to the FMLA. Thom was then fired and the company used his excess leave as justification for his discharge.

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In the first case of its kind, the U.S. Court of Appeals for the 11th Circuit, which includes Georgia, Alabama and Florida, considered what actions are considered protected by the Family and Medical Leave Act. Specifically in Pereda v. Brookdale Senior Living Cmtys. Inc., the appellate court reviewed whether an employee who made a “pre-eligibility” request under the Family and Medical Leave Act is protected from retaliation. In order to be eligible for protection under the FMLA, an employee must work 1,250 hours within the previous 12 months and experience a triggering event, such as the birth of a child.

If you have questions concerning whether you may be eligible to take leave under the FMLA, it is a good idea to consult with a knowledgeable Atlanta employment discrimination attorney. An attorney skilled in practicing family and medical leave law can answer your FMLA questions and provide crucial guidance concerning your next steps.

Here, a female employee – Kathyrn Pereda - was not yet eligible for leave when she first brought it up, but would be eligible at the time she gave birth to her child. Based on the “advanced notice” requirements of the Act, Pereda notified her employer of her pregnancy and her wish to take leave after the birth of her child. After she informed her employer of her pregnancy, Pereda’s supervisors began to harass her. She was placed on a performance improvement plan with “unattainable goals” and was ultimately fired.

Pereda asserted she was retaliated against in violation of the FMLA. Her employer responded that because she was not eligible for FMLA leave when she made the request, her claim for retaliation was not valid. Although the lower court agreed, the 11th Circuit reversed, finding that a “pre-eligibility discussion of post-eligible FMLA is protected activity.”

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A recent case out of the seventh circuit found that a woman who disclosed to her psychiatrist that she was having thoughts about killing her supervisor can proceed with race and sex discrimination claims, along with retaliation claims under Title VII.

If you believe you may have been subject to discrimination at work, it is important to speak to an experienced Georgia employment discrimination law firm.

In Coleman v. Donahoe, a female postal employee with fired after she told her psychiatrist about violent thoughts she had concerning her supervisor, including killing him. Denise Coleman was hired in 1974 as a mail-processing clerk, and had a good employment record up until January 2005 when the postal service hired a new supervisor. Within a few months after the new supervisor began working, Coleman sent emails to the head of the postal facility alleging sex discrimination and threatening to file an Equal Employment Opportunity Commission (EEOC) charge.

When Coleman subsequently required surgery and requested sick leave, she was treated to harsh working conditions and asked to perform work that would worsen her condition, such as moving heavy boxes and punching a time clock located outside her stair-climbing range. After Coleman went on leave without punching the clock, her supervisor issued an AWOL notice. Coleman then filed for pre-complaint counseling with the EEOC, identifying her supervisor as subjecting her to discrimination.

While in counseling for depression, anxiety and insomnia, Coleman revealed to her psychiatrist that she had both suicidal and homicidal thoughts, including thoughts of killing her supervisor. After treatment ended, Coleman's psychiatrist informed her supervisor about her homicidal thoughts. Coleman was then immediately terminated by the postal service citing a “no tolerance” policy for work place violence.

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Recently a federal jury awarded a pathologist a $7.6 million retaliation verdict. In Renta v. Cook County, a jury determined that a health agency had retaliated against a physician - Dr. Vivian Renta - after she complained about substandard hospital policies and the quality of care patients were receiving. The verdict represents damages for back pay, front pay, lost pension benefits and pain and suffering.

If you believe you have suffered an adverse employment action as the result of complaining about discrimination – or participated as a witness is someone else’s complaint of discrimination, you may have a claim for retaliation. If you feel you have been treated unfairly at work, consulting with a knowledgeable Georgia employment retaliation attorney is an important first step to determining your rights and evaluating whether you may have a claim.

In Renta, the physician sued after she was terminated and was declared “incompetent,” a virtual “death sentence” for physicians seeking to obtain a new job. As stated by a representative, “An adverse employment decision that takes away a doctor’s right to practice and their privileges at the hospital is the equivalent of the professional death sentence.”

Just what constitutes retaliation may differ in each employment situation. Although in some situations retaliation consists of termination, in other cases, it may be adverse actions such as being placed on undesirable shifts or assigned to a “worse” location.

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A California jury awarded $17.7 million to a group of five older workers who were given more difficult work hours so as to injured them or frustrate them into quitting. The employers also downgraded the workers performance reviews. In Ward v. Cadbury Schweppes Bottling Grp., a seven member jury found that American Bottling Co. and Dr. Pepper Snapple Group Inc. was liable for age discrimination by requiring a manager to discriminate against older delivery drivers and for disability discrimination by failing to accommodate a driver’s disability. 6 employees were also awarded punitive damages based on the jury’s determination that the companies acted with “malice, oppression, or fraud.”

If you believe you have been treated unfairly at work, it is important to consult with an experienced Atlanta employment discrimination lawyer. Many federal laws exist to protect workers from discrimination and harassment, including Title VII of the Civil Right Act of 1964, which prohibits discrimination on the basis of race, color, sex, national origin and religion. Additionally the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act (ADAAA) protect against disability discrimination and the Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from discrimination.

According to reports, the lawsuit was filed after management at the San Fernando branch of the American Bottling Co. began engaging in a pattern of aged-based discrimination including downgrading employee reviews of older workers, giving older workers heavier workload, providing unwarranted write-ups and not supporting the older workers. Additionally, branch managers noted the need for “new blood” and referred to the locations staffed by older workers as “retirement communities.” In order to replace the older workers with younger employees, one supervisor was told to assign older workers jobs that would “injure them or force them to quit.”

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Hiring requirements – such as English only rules, passing a test or living in a certain area- may be considered racial discrimination depending on the circumstances. In a recent case, the 3rd Circuit Court of Appeals determined that a Regional Fire and Rescue squad that had a rule stating that only residents could be hired as firefighters was racially discriminatory. Although the rule on its face was not discriminatory, when put it place it had a disparate impact on African American applicants.

In NAACP v. North Hudson Reg’l Fire & Rescue the fire department had a rule that only residents of North Hudson could be hired as firefighters. The NAACP challenged this rule, arguing that the impact of the residency requirement was to effectively exclude African Americans. The population of North Hudson is 69.6% Hispanic, 22.9% non-Hispanic and 3.4% African American. However, the makeup of the firefighters was disproportionate to the population with 240 white non-Hispanics, 58 Hispanics and only 2 African Americans. If the labor market were to include the tri-county region, rather than just the limited area, significantly more African Americans would be eligible and qualified for employment.

Under Title VII, practices that have the unintentional effect of discriminating based on race are prohibited. Here, using a residents-only caused a disparate impact and North Hudson failed to take any steps to remedy the adverse effects. Further, no business necessity existed to maintain the residency requirement. As a result, the court determined that the NAACP could maintain its action for race discrimination against North Hudson Fire & Rescue.

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A woman who underwent a sex change has recently won a transgender sex discrimination case. In Glenn v. Brumby, a federal appeals court in Atlanta reviewed whether a former editor in the Georgia General Assembly’s Office of Legislative counsel had a claim for sexual discrimination after she was fired following the announcement of her intent to transition from male to female and begin presenting as a female at work.

In Brumby, Vandiver Elizabeth Glenn was born a male, and was diagnosed with gender identity disorder. As part of the process of transitioning from male to female, she was required to live as a woman outside of the workplace prior to undergoing sex reassignment surgery. From the beginning, her supervisor made it clear that he was uncomfortable with the transition. When Glenn dressed as a woman on Halloween she was asked to leave the office. She then told a supervisor that she planned to change her name and begin presenting as a woman at work. Her supervisor then relayed this information to Brumby who subsequently fired Glenn, claiming that the gender transition was “inappropriate” and would be “disruptive.” Brumby also claimed that the transition would make some co-workers uncomfortable.

Whether a particular action constitutes sex discrimination varies on a case-by-case basis. If you believe you have been subject of sex discrimination at work, it is always advisable to speak to an experienced sex discrimination attorney to review your particular circumstance and determine your next steps.

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Recently a court in Ohio determined that if your boss repeatedly asks you questions such as “when are you going to retire?” or urges you to retire, these actions may support a claim under the Age Discrimination in Employment Act (ADEA). The ADEA is a federal law that prohibits discrimination against individuals over the age of 40. In Franks v. Village of Bolivar, the Northern District of Ohio ruled that a mayor’s repeated and relentless urging of a city worker to retire supported a claim of age discrimination.

If you believe you have been subjected to age discrimination at work or have questions concerning your employer’s conduct, an experienced Atlanta employment discrimination lawyer can provide you crucial advice about your potential claim and help you determine your next steps.

In Franks, a man – Gary Franks - was employed as the water and street superintendent for 33 years. As a city employee he was appointed for yearly terms, beginning and ending at the end of each calendar year. In 2011 he was not reappointed. In a complaint for age discrimination, Franks alleged that he was terminated because he was an older employee at the high end of the pay scale with benefits and payments due. He also claimed that the mayor “relentlessly badgered” him to retire. Other statements showing age bias include telling him that “he could go work on a farm” and that she would “throw a big party if he would leave his job.”

The court determined that these facts alone were enough to show direct evidence of age discrimination. He did not need to establish that other similarly situated employees were treated better. The court explained that where an employee alleges direct evidence – such as discriminatory statements – these alone may be enough to bring a lawsuit. The “McDonnell Douglas” test involving evidence that an older employee was replaced by a younger one or better treatment of a similarly situated worker is not necessary is not necessary at the pleading stage where direct evidence of discrimination is alleged.

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Older workers offer significant experience and maturity to the work force, but unfortunately age discrimination continues to be one of the fastest growing types of employment discrimination claims. In an effort to combat this growing problem, Congress passed the Age Discrimination in Employment Act (ADEA). The ADEA makes age discrimination illegal and provides legal protection for those fired – or experiencing any type of adverse employment action – because of their age. The ADEA also protects those people who complain about age discrimination or participate in another’s age discrimination claim from retaliation. The ADEA applies to people 40 years or older.

If you believe you have been treated unfairly at work as the result of your age, speaking to a knowledgeable Georgia age discrimination lawyer is an important step to determine your rights and evaluate your next steps.

In an effort to reflect recent Supreme Court rulings concerning the ADEA, the Equal Employment Opportunity Commission (EEOC) has just approved a draft ADEA final rule amending the current (ADEA). The Supreme Court decisions concern the “reasonable factor other than age” (RFOA) defense that provides that employers may have a defense to ADEA violations if they can show that an employment decision is based on “reasonable factors other than age.” The rulings, Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratories determined that the RFOA defense should be based on the “facts and circumstances” of each case and whether an employer made the best decisions in light of those facts. The amendments seek to adopt a “balancing approach” to protect workers from discrimination and protect older workers from facially neutral employment practices that disparately impact employment.

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Sometimes evidence that you have been discriminated against may be clear and direct. Other times evidence of discrimination may be indirect and is based on inference or presumption. In a recent case, Makowski v. SmithAmundsen, the 7th Circuit determined that a statement that reveals bias may be used as direct proof of job discrimination, and that these statements may be deemed “admissions” and not hearsay.

If you have questions concerning employment discrimination or believe that you have been suffered job discrimination, it is important to speak to a knowledgeable Georgia discrimination lawyer to determine your next steps.

In Makowski, a marketing director of a Chicago Law Firm sued for pregnancy bias and violations of the Family and Medical Leave Act after she was terminated following a pregnancy leave of absence.

In addition to Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination “because of” your gender, Congress has passed some additional anti-discrimination laws that protect women in the workplace. One of these protections is the Pregnancy Discrimination Act that prohibits discrimination based on pregnancy, childbirth and related medical conditions. Rather than giving pregnant women special treatment, the Pregnancy Discrimination Act simply provides that pregnant women must be treated the same as non-pregnant individuals.

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A recent case determined that a fired federal employee could bring a claim of retaliation against a federal employer. The decision was the result of the court’s review of Diggs v. HUD, a “mixed case” based on both retaliation and employment discrimination. Although the court determined it lacked proper jurisdiction to decide this case, it was significant in determining that Title VII prohibits retaliation in federal employment.

A mixed case is one that includes both a claim of some form of employment discrimination – here sex discrimination – and an adverse action. In the present case, the adverse action was Diggs’ termination. If you believe you have been subject to any form of discrimination or have been retaliated against after complaining of discrimination, it is important to speak to a knowledgeable Atlanta employment discrimination lawyer to evaluate your claim and determine your next steps.

Here, an employee of HUD, Diggs, was terminated based on misconduct charges including the following: 1) Rude, disruptive, aggressive or intimidating behavior; and 2) Misrepresentation. As a defense to the misconduct charges filed against Diggs, Diggs claimed that she was actually fired because she had previously filed a sex bias claim. A sex bias claim is based on the assertion that an employer has discriminated against you “because of” your sex. Title VII prohibits taking adverse actions such as termination, failure to promote and suspensions because of your gender. Additionally Title VII prohibits retaliation if you complain about discrimination. This is intended to protect employees so that they are not afraid of complaining about work place discrimination, or helping others who file complaints. Prohibited retaliation includes actions such as being demoted, terminated, moved to a worse location or given worse hours. However, the Supreme Court has not expressly ruled on whether the ban on retaliation applies to public-sector employers.

In evaluating whether Title VII bans retaliation in federal employment as in private employment, the Federal Circuit determined that when Congress broadly drafted provisions preventing ‘any discrimination’ it intended to bar the government from “engaging in, among other practices applicable to employers, retaliation against an employee who complains of illegal discrimination.”

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The Americans with Disabilities Act protects qualified individuals against several different types of discrimination based on a “disability.” A qualified individual with a disability includes those individuals with any medical, physiological, or psychiatric condition that substantially limits a major life activity. Further, the ADA protects against perceived disabilities. This includes disability discrimination based on stereotypes and baseless concerns about an individual’s condition or medical history. Under these circumstances, it is a violation of federal discrimination laws to take adverse employment actions or retaliate against you for complaining about disability discrimination. It also requires your employer take reasonable steps to accommodate your disability.

In a recent case, Blackburn v. Trustees of Guilford Technical Cmty. Coll., a North Carolina Court reviewed whether a Community College violated the ADA when it refused to allow a house keeper – Gail Blackburn - to return to work. Blackburn had sustained workplace injuries and was placed on work place restrictions prohibiting her from lifting more than 20 pounds, sitting of standing for a prolonged period of time and repetitively bending, stooping or squatting. When she received a physician’s release two months later, the Community College failed to give her her job back, based on their perception that she was disabled and could not perform her job.

Blackburn sued the Community College, and the College tried to defend itself by claiming it was immune from liability as an “arm of the state,” and the Constitution generally prohibits lawsuits against states. However, North Carolina specifically waived sovereign immunity for lawsuits filed by “state employees” and as a result, Blackburn was allowed to proceed with her job discrimination claim.

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