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ICYMI: Our Social Media Posts This Week -- Aug. 31 – Sept. 6, 2014

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

The post on Sunday 8/31/14 mentioned how a 5-foot stuffed gorilla was insufficient to fine an employer in a race discrimination case by an African-American employee. After trial, the decision was in favor of the employer (the state), but the judge still fined the employer $1000/day for the 21 days the gorilla was there. On appeal, the court said that the case was about denial of promotions and training because of race and not the gorilla having been placed at the employee’s cubicle (which would have been relevant had hostile environment been part of the case).  

TAKEAWAY:  Most obvious things will put the employer in hot water, but sometimes it can be saved by a procedural issue. Don’t hope for procedure – do it the right way from the start.

          The post on Monday 9/1/14 was about how a stressed-out commute led to a lawsuit (and how far the duty of accommodation really goes). The employee went out on disability leave due to depression; when she returned, she said that traffic causes her too much stress and asked that her work schedule be changed so she didn’t have to travel in rush hour. The employer accommodated at first; later, it changed her responsibilities without telling her. That is what she claims is discrimination on the basis of disability.

TAKEAWAY: If a granted accommodation needs to be changed, or if the job itself will change, let the employee know; don’t just do it and let the employee find out or bad inferences might be drawn by the employee and a court.

On Tuesday 9/2/14 the post talked about estate planning documents every (young) professional should have. So you have a job/career and a family (whether parents, siblings, spouse, significant other, and/or child(ren). You have begun building equity in assets. Protect the equity for the people.  The post mentioned documents you should have in place, including a durable power of attorney and a health care power of attorney (or living will). Go back to the post for the others.

TAKEAWAY:  Now, while you can, designate in writing what will happen with your assets and who will take care of your dependents; if there is no legally-sufficient writing in place, the state will decide for you.

The post on Wednesday 9/3/14 asked if you ever thank your employees. Both research and common sense say that appreciation is important to employees. And that generally they feel they don’t get enough. Employers should give appreciation four times more often than constructive comments. An example of a four-step process to accomplish that is in the post.

TAKEAWAY: While it is nice to reward employees who are doing a good job with money or other tangibles, they also – and perhaps even more so - value being appreciated and told of that appreciation.

On Thursday 9/4/14 the post confirmed that with the ADA, it’s gotta pass the smell test too. What does that mean? In the profiled case, the employee had been discharged for a positive drug test (which is excepted from the ADA). Regardless, the court denied the employer’s motion to dismiss the case. Why? Smell. The employee alleged he was picked on and held to a different standard, including increasing scrutiny after complaining about racial remarks (which remarks led to depression which led to drug use). The employee asked that the discipline for the drug test be waived or that he be given counseling (especially since Caucasian ono-disabled employees were not treated similarly). Go to the post for more of the facts leading the court to conclude that the employer’s proffered reason did not smell right.

TAKEAWAY: Even if you have a legitimate reason for an adverse action, make sure it and its context look and smell right or you might find yourself in hot water anyway.

Friday 9/5/14’s post was about whether English can be discriminatory. The EEOC says yes. It is suing a company for firing a group of Hispanic and Asian employees over their inability to speak English at work, claiming that the English-language requirement in a U.S. business constitutes “discrimination.” The EEOC claims that national origin discrimination includes the “linguistic characteristics of a national origin group.” How does the EEOC support its claims? “When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

TAKEAWAY:  If proficiency in a particular language is a legitimate business requirement, a policy requiring that employees speak that language might pass muster. But before you require it of all employees, check with an employment law attorney to make sure the policy will not be overreaching.

Finally, the post yesterday 9/6/14 was off-topic. It reminded us that in Central PA, people can and do scuba dive year-round. Still, the warmer months are preferable to many to learn to scuba dive.

TAKEAWAY: You are never too old to learn to scuba dive – make the time and start on a journey that will last you a lifetime.

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