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Our Social Media Posts This Week -- Apr. 20 - 26, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, Sunday 4/20/14 was both Easter and Passover. We shared holiday greetings to all.

TAKEAWAY: Yes, even we take time for the holidays. You should too.

On Monday 4/21/14, we posted one reason not to go to Jared: allegations of pay disparity by gender. The class-action lawsuit was filed against Sterling Jewelers, owner of the Jared chain, alleging that Sterling systematically discriminates against female employees in pay and denies them promotions and, at times, fails to respond appropriately to complaints of “persistent sexual harassment”. Yep, it’s not all sparkles for Sterling. One of the plaintiffs is a store manager who was paid less than her husband, also a store manager. This suit will go to arbitration based on a provision in the employment agreements. NOTE: the EEOC had filed a prior class-action suit against Sterling in 2008 on behalf of 44,000 female employees, claiming denial of promotional opportunities and unequal pay. A judge just dismissed that suit, saying the EEOC had not investigated enough to justify a class suit.

TAKEAWAY: If there is a difference in treatment (job assignment, promotion, pay) between male and female employees, there better be a legal explanation for that difference. If not, the employer will be brought to heel and to suit.

Next, on Tuesday 4/22/14 we learned that all is not coming up roses this spring, at least for the Merry Maids franchise sued by the EEOC for pregnancy discrimination. Allegedly the employee suffered from pregnancy-related health issues but her ability to perform her job was not impacted. The EEOC was unable to settle the claim and so brought suit.

TAKEAWAY: When pregnancy is involved, an employer cannot treat the person differently than any other employee, especially if job performance is not affected.

On Wednesday 4/23/14, the psot was about bosses looking for the “dream team” and landing the employer in hot water.  For what? Age discrimination. Sometimes a supervisor will want younger team members, and this can come at the expense of older workers. The example cited was a 50-year-old male employee who met sales goals but, nonetheless, was placed on a performance improvement plan and given new goals. He did not meet those new goals and was discharged. His replacement, a younger female, also did not meet the new goals, but was not put on a PIP nor discharged. The male employee sued for age discrimination. One of the things cited by the employee as evidence was his supervisor’s comment that “he didn’t like working with employees who were ‘long in the tooth’ and found it easier to manage younger employees.”  Ouch for the employer since the case will now go to a jury.

TAKEAWAY: Employers must train supervisors and make sure that they are doing what they are supposed to (or, conversely, not doing what they should not be). If anything looks it might be discriminatory, stop it, investigate, and (attempt to) remedy it. Don’t wait for the suit.

On Thursday 4/24/14, the post was about how and where prohibited employment practices arise in real life. The post was authored by the EEOC and includes some examples of where employers can get tripped up: job advertisements, recruitment, application & hiring, background checks, job assignments & promotions, pay & benefits, discipline & discharge, and many more (go to the post to see the rest). What seems like an innocuous question or practice might, in reality, be discriminatory and violate one or more laws. It is a big ocean and there are lots of relevant and applicable employment laws – federal and state - swimming around in that ocean.

TAKEAWAY:  There are examples every day of employers putting their foot in their mouth, even unintentionally; don’t be one of them. Talk to an employment law attorney and make sure you and your maangers know what to ask or do and what not to.

The post on Friday 4/25/14 was about whether an employee was fired for a safety violation or his use of intermittent leave.  The court sent the matter to trial under both the FMLA and ADA.  The 18-year employee, Smothers, was injured in 1994; he had three surgeries and other medical procedures but the pain did not go away. He was granted intermittent leave under the FMLA for absences due to his medical condition. Coworkers and managers started to complain about Smothers’ leave; it affected them more since he worked the graveyard shift and there were fewer employees on that shift already. His supervisor pressured him to switch shifts and he refused; HR told the supervisor to stop the pressure, which he did, but the complaints about Smothers’ leave didn’t stop. Further, in 2005 or 2006, Smothers was given a poor evaluation and was denied a promotion due to the absences. A few years later, Smothers argued with another employee about a safety issue. The other employee reported it and supervisors talked to Smothers. This was his first safety violation. During the investigation, nobody talked to Smothers about what happened. He was discharged and sued. The court ruled there was enough evidence (of unequal enforcement of rules, the use of FMLA-protected absences in evaluation and promotion decisions, and the shift-change pressure) to let a jury decide if the discharge was due to the safety violation or if that was pretext for the FMLA violation. The court also found Smothers was disabled under the ADA and a jury could decide whether or not there was disability discrimination.

TAKEAWAY: Managers or others charged with evaluating employees must be trained on when they can and cannot take absences into account; also, an employer who has rules/polices in place must uniformly enforce them or have a very good reason why they did not. It is easier (and cheaper) to do the right (legal) thing than to litigate.

Finally, yesterday 4/26/14, we posted about whether the Lehigh University professor who filed a discrimination complaint and lost her job experienced retaliation or not.  The professor was employed under a contract which was not renewed after she filed a complaint with the EEOC alleging sex discrimination, including the University’s alleged failure to enforce rules in a gender-neutral way and imposing rules on her not imposed on male colleagues. Only time (and a judge or jury) will tell if the failure to renew the contract was performance-based or retaliation for the filing of the EEOC charge.

TAKEAWAY: If a rule or policy exists, then it should be enforced evenly across the board unless there is a valid, legal reason to the contrary; employers should consult an employment law attorney on whether the reason is indeed legal. Nobody needs bad publicity or, even worse, a judgment finding the business violated the law.


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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